Vickers & Knott

[2007] FamCA 121

FAMILY COURT OF AUSTRALIA

VICKERS & KNOTT [2007] FamCA 121

FAMILY LAW - CHILDREN'S ISSUES - MAGELLAN REFERRAL

Family Law Act 1975 (Cth)

APPLICANT: MS VICKERS

RESPONDENT: MR KNOTT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1315 of 2005

DATE DELIVERED: 16 FEBRUARY 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 16 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SALAMANCA

SOLICITOR FOR THE APPLICANT: WATERS TIMMS PTY LTD

COUNSEL FOR THE RESPONDENT: MR HERBERT

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 hearing of all extant applications be adjourned to the Honourable Justice Bennett and the Magellan Registrar, and be placed in the Magellan list of cases and be next heard in the Pre-Trial Listing on 2 March 2007 at 10.00 a.m.

2. THAT the Department of Human Services Victoria, Dandenong Branch, be given the opportunity to intervene in these proceedings if they deem that course of action to be appropriate.

3. THAT the Department of Human Services be requested to produce their files, records and documents to the Court and, if appropriate, to prepare a report as to the various allegations that they have investigated.

4. THAT the Independent Children’s Lawyer be given leave to forthwith issue a Subpoena to the Department of Human Services, Dandenong Office for the production of their relevant file(s) to the Court as soon as practicable but on or before Friday 23 February 2007.

5. THAT counsel or the legal practitioners for the parties, but not the parties themselves, be given a right of inspection of those files and documents but they are not to be copied save with the further permission of the Court on the adjourned hearing date.

6. THAT this matter be formally assigned as a Magellan list case and the further hearing in the defended list currently scheduled for Tuesday 20 February 2007 be vacated.

7. THAT Mr P prepare an updated children’s and family report and be given access to the Department of Human Services file, if requested, and other evidence and documents now before the Court so that such report can be filed with the Court by the Independent Children’s Lawyer prior to the end of March 2007.

8. THAT the solicitors for each of the husband and wife provide to the Independent Children’s Lawyer a formal and complete list of allegations and concerns that would be the subject of a Form 4 Notice of Risk or Risk of Child Abuse on or before 4.00 p.m. Tuesday 20 February 2007.

9. THAT a Form 4 Notice of Abuse or Risk of Child Abuse be prepared and be filed by the Independent Children’s Lawyer, and served upon the Department of Human Services and all other parties on or before 4.00 p.m. Thursday 22 February 2007.

10. THAT both the husband and wife make available to the Independent Children’s Lawyer and the Department of Human Services a copy of any hard disk or computer software or information in support of or in response to the various allegations of child pornography as soon as practicable, but prior to 4.00 p.m. Tuesday 20 February 2007.

11. THAT the husband, by his solicitors, make available to the Independent Children’s Lawyer and the Department of Human Services any police report, investigation or court judgment that may be available on investigations of and related to the wife’s allegations of his involvement in child pornography or other illegal activities.

12. THAT likewise the wife produce any such police report or other document or court order that she may have on these and related issues to the Independent Children’s Lawyer and the Department of Human Services by 4.00 p.m. Tuesday 20 February 2007.

13. THAT any tapes, documents, records or files of, or in the possession or control of one or either of Mr L or Mr R, and if they be relevant to any allegation or issue of or involving the husband are then to be produced (by copy) to the husband and the Independent Children’s Lawyer on or before 4.00 p.m. Thursday 22 February 2007 and, if not then produced, liberty be reserved so that an application to exclude such evidence can be made to the Court on the adjourned hearing date 2 March 2007.

14. THAT the costs of the attendance at Court this day of all parties, and limited to a period of 2½ hours, be reserved and be determined by the trial Judge.

15. THAT leave be granted to the solicitor for the husband to file his client’s further affidavit as required this day.

16. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties and the Magellan list Judge and a copy is to be provided by the Independent Children’s Lawyer to Mr P.

IT IS NOTED

A.THAT counsel for the husband has foreshadowed as an issue that information contained on the hard disk and of and related to the allegations of child pornography may have been tampered or interfered with and that will be an issue in these proceedings.

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. The matter of Knott & Vickers and the Independent Children's Lawyer is again before me for mention in this continuing defended blitz of cases.  Mr Salamanca of counsel appears for the husband.  Mr Herbert of counsel for the wife and Ms Watts continues to appear as the appointed Independent Children's Lawyer.  I made orders on 14 February of this year and earlier orders on both 12 February and 18 January.  This matter, in my view, remains unprepared and is not able to proceed this day to a defended hearing.  In any event there are specific matters listed next Monday that will occupy, I am assured, four days of court time.

2. The issue in this case is, generally stated, to be whether the child SA born in April 2001, known as A, should enjoy either increased periods of time spent with her father or whether the father should appropriately be the resident parent, or on the other hand whether there should be more substantial or total restrictions on any time that the father spends with A.  There are allegations and counter-allegations dominating this case.  I have previously touched on some of those allegations which range from alleged child pornography, alleged threats to kill, and now issues of whether the parental judgment and skill of the mother is such that A is best served by rebeing removed from her full‑time care and residence.

3. I make no finding on any of these issues, though I do highlight the totally unsatisfactory nature of evidence now before the court in preparation of the case.  In the context of this brief extempore judgment I propose only to touch upon certain issues of evidence and the lack of preparedness of the case.  It is now established that there is a file, or files, held by the Department of Human Services.  They are under the name of the child known as A and not the formal given name of the child.  The documents and files are not as yet produced to the court but at last they have been identified within the Dandenong office of that Department.

4. The commencement date of allegations is unknown, but Ms Watts has informed the court that the file was closed by the Department earlier this week.  I will again order a subpoena be issued for the production of the whole of that file to the court on or before the adjourned listing date which will be to the Magellan list of cases on 2 March 2007 before her Honour Bennett J.  It is imperative that all allegations that touch upon the welfare of the child and relate to either sexual or physical threats of violence or other behaviour, are disclosed.  Mr P has been the appointed psychologist involved in the preparation of reports and he last saw the parties or the child in about June 2006.  He has not, at his request and upon his recommendation, filed an updated report considering that his final document deals appropriately with issues as to the welfare and best interests of A.

5. Given that I am going to refer this matter to the Magellan list of cases, it is appropriate that there be an updated report.  Ms Watts has made inquiries and that report can and will be prepared in the latter half of next month and be then available for the court.  I am conscious that in referring a matter to the Magellan list there would normally be an order made pursuant to section 91B of the Act.  The specific allegations of child pornography or physical violence and threats to kill, and other issues are touched upon in the various affidavits of the parties and witnesses.

6. There clearly is an intractable conflict between parents and there are significant reports of abuse.  The exact nature of which will only be known when ultimately the Department's file is disclosed to legal practitioners and the court.  Significantly a Form 4 notice of abuse or risk child abuse is not yet filed.  That is wholly unsatisfactory.  I had previously directed that such a notice was to be filed by last evening.  Mr Herbert has explained that it was not possible to prepare the document given the involvement of his solicitor and himself in preparing the affidavit of Mr N or otherwise the further affidavit of Mr L.

7. The current suggestion now made to the court by the Independent Children's Lawyer, is that she will prepare and file such a Form 4 document disclosing all threats and issues of concern.  I have invited counsel for the parties to respond to that suggestion, and each of them agree, save with the caveat that they may also file on behalf of their client, a further Form 4 notice.  At least that is the case from the wife's counsel.  What I intend in this case is that the parties are to provide to the Independent Children's Lawyer specific and carefully drafted concerns covering all relevant issues and lodge those documents with Ms Watts by 4 pm Tuesday 20 February 2007.

8. Thereafter Ms Watts has volunteered and the court accept that she will forthwith file with the court and with the Department of Human Services the appropriate and comprehensive Form 4 document detailing all disclosures and concerns.  If the wife is to file or if the husband seeks to file their own Form 4 document, that must be filed by 4.00 p.m. on Wednesday of next week.  In terms of the hard disc or other computer evidence alleging child pornography and other pornography that is detailed in the wife's affidavit, the court is now advised from the bar table that there was some form of police investigation and report and County Court proceedings.

9. Whether there was a court hearing or a judgment or a decision is unknown, but the husband will be aware of and must make proper disclosure of the events and circumstances to both the Independent Children's Lawyer and to the court.  The husband has that hard disc and it was available for the police or County Court proceedings.  That is to be produced to the Independent Children's Lawyer forthwith.  I further require the wife to produce to the independent children's lawyer and to the solicitors for the husband, a copy of the contents of that hard disc, wholly and inclusive of all matters thereon, so that there can be an investigation into the evidence and it can be the subject of a proper disclosure and referral to the Department of Human Services, to Mr P if appropriate or otherwise at the direction of the independent children's lawyer.

10. I am very concerned that this court is put in the whole picture as to what other court proceedings in other courts or what police investigations have taken place that may be relevant to the various and expanding issues and allegations now before the court.  There must in the very near future be certainty as to the allegations, as to the proofs substantiating the allegations, and this matter prepared so that it can proceed to a final hearing in the Magellan list.  There remains a valid complaint by the husband's legal practitioners as to the production of documents, tapes, files, notes and the like from Mr R and perhaps additionally Mr L.

11. I have previously made orders, but I will extend those orders so that all such documents and the like are to be produced, insofar as they are available and may be relied upon, by next Wednesday at 4 pm.  Otherwise it does seem to me that the husband's legal practitioners can rightfully raise this matter as an issue before her Honour in conducting the Magellan callover of this matter on 2 March as to the likely exclusion of any other evidence or information from each of these gentlemen now not properly disclosed to the independent children's lawyer, the department, the police or the court.

12. For the reasons earlier given I will not make an order under section 91B of the act, I will not complete the listed issues but it is apparent that there are serious allegations and I am clearly of the view that both because of the subject nature of those allegations and that this case may take, and likely will take more than five days to be wholly heard and determined and judgment given, that it is a matter for the Magellan list and not an ordinary defended list of cases.

13. I will make orders in accordance with these brief extempore reasons and have these reasons transcribed and placed upon the court file and made available to the parties.  I will facilitate leave being given to the solicitor for the wife to file the further affidavits as ordered of Mr L and Mr N this day. 

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

………………………………………………………..
Associate: 
Date: 1 March 2007

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