White and Andrews and Anor

[2007] FamCA 887

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS AND ANOR [2007] FamCA 887

FAMILY LAW – PRACTICE AND PROCEDURE - Case management – Affidavits to be filed

Family Law Act 1975 (Cth)

APPLICANT: MS WHITE

RESPONDENT: MR ANDREWS

INTERVENOR: THE DEPARTMENT OF EDUCATION

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 4337 of 2002

DATE DELIVERED: 17 AUGUST 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS SINCLAIR

SOLICITOR FOR THE APPLICANT: WOMENS LEGAL SERVICE VICTORIA

COUNSEL FOR THE RESPONDENT: MR PINNER

SOLICITOR FOR THE RESPONDENT: JEANNE GORMAN

COUNSEL FOR THE INTERVENOR: MS SEVDALIS

SOLICITOR FOR THE INTERVENOR: PHILLIPS FOX

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MARCHETTI

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCLUSKYS

ORDERS

1. THAT all extant applications be adjourned for hearing in the defended list of cases as a primary matter and with an estimate of up to five (5) days and to be listed on Monday 8 October 2007 at 10.00 a.m.

2. THAT on or before 7 September 2007:

   (a)the Intervenor make, file and serve such affidavits as they intend to rely upon from -

   (i)Mr H;

   (ii)Ms M;

   (iii)such further affidavits by persons who are properly required to establish the case of the Intervenor;

   (b)the applicant mother make, file and serve an affidavit by the sister of the father, Ms J A.

3. THAT the father have leave to adduce evidence by Ms G A and Mr W at trial by electronic communication pursuant to Family Law Rule 16.08 and that for such purpose the father be responsible in conjunction with the Court for the costs of establishing and adducing such evidence by video or other approved electronic form of communication.

4. THAT no later than 28 September 2007 all parties make, file and serve an updated and detailed case summary including minutes of the specific orders sought and a specific identification of all issues to be determined by the trial Judge.

5. THAT subject to any order or direction of the trial Judge:

   (a)        the applicant wife be entitled to rely upon:

   (i)an updated affidavit to be filed by herself in lieu of and in furtherance to her earlier affidavit of 22 February 2007;

   (ii)an affidavit from Ms J A;

   (b)the respondent husband be entitled to rely upon the affidavits of:

   (i)himself, by way of an updated affidavit filed in lieu and in furtherance to his earlier affidavit of 7 March 2007;

   (ii)Ms G A;

   (iii)Mr W;

   (iv)Mr S;

   (v)and, if relevant, Mr T;

   (c)the intervenor file affidavits and be entitled to rely upon evidence from:

   (i)Mr H;

   (ii)Ms M;

   (iii)such further affidavits filed pursuant to Order 2(a)(iii) hereof;

   (d)the Independent Children’s Lawyer rely upon the following:

   (i)the various reports of Mr P, psychologist; and

   (ii)the report and evidence of Dr R.

6. THAT leave be given to the solicitors and counsel for the intervenor to inspect the Court files by arrangement with the Court and, where appropriate to make and retain copies of affidavits filed in the proceedings.

7. THAT all extant orders of State and Federal Courts are to be filed forthwith with this Court and to be served upon all parties and any past orders are to be disclosed.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband, intervenor and Independent Children’s Lawyer and solicitor appearing as counsel for the wife.

IT IS NOTED

A.THAT each of the updated affidavits of the wife and husband and any annexures thereto are to be filed and served on or before 7 September 2007.

B.THAT it is accepted by all parties that leave was granted to the Department of Education pursuant to the Order of Guest J pronounced 27 July 2007.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as White & Andrews and Orrs.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4337 of 2002

MS WHITE

Applicant

And

MR ANDREWS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

And

DEPARTMENT OF EDUCATION

REASONS FOR JUDGMENT

1. In the matter of White & Andrews and the Independent Children's Lawyer and the Department of Education, is before me for mention this day.  Mr Pinner of counsel appears for the respondent husband, Ms Sinclair, solicitor, appears pro bono for the applicant mother, Ms Sevdalis of counsel appears for the Department of Education who appears pursuant to leave earlier granted by his Honour Guest J on 27 July 2007.  Mr Matchetti of counsel appears for the Independent Children's Lawyer.

2. This matter was directed by his Honour to be heard before me on 27 August 2007 as a five day defended hearing.  I am not able to take that case on that day as I will be part-heard in the matter now before me.  I therefore arranged to have this matter listed so as to determine its state of preparation, to identify the issues and the evidence that would be before the court.  Having heard submissions from all practitioners today it is clear that this case is currently not ready to proceed.  The affidavits are incomplete, the issues are not identified.

3. This is a substantial proceeding in that it occupies two boxes and many files.  The issues however, are somewhat contained and as I understand and without excluding matters that might arise, in summary, they are:

   -The appropriate time to be spent by the father with the child,

   -The attendance by the father at or in the vicinity of the child's school.

   - Potential overseas travel, for holiday purposes by the father with the child.

4. There may be other incidental matters that arise, but there are no issues of residence and no financial or property orders before the court.

5. There previously have been orders made in the State jurisdiction as to intervention orders whereby both the principal and deputy principal of the child's school at P have sought and have permanent and ongoing orders restraining contact by the father with them.  There was somewhere, and it may now have been concluded, a trespass order from the State courts excluding the father from any entry to the school premises or property.  The current circumstance of all orders are to be updated and fully documented to all parties and the court.  The current affidavits are inadequate.  In particular if the Department of Education is required to prove again its intervention order, and I am not determining that to be the case, then there are specific evidentiary issues that will have to be updated.

6. I have a request by the legal practitioners for the mother and father to update their affidavit material and that is appropriate.  Otherwise I have clearly sought to detail who will give evidence for the parties and to somehow contain this case, though it does appear to me that four days and not five days will be required for the hearing.  It is opportunistic that the Listing Registrar has indicated that a date will likely become available on 8 October, and that this matter can be listed as a primary matter to be given priority and to be heard and determined on that day.

7. I do not intend these reasons to deal with any specific issues before the court.  There is a current arrangement in place that changeover is to occur at the M Police Station.  The issue as to time spent seems to be that from the commencement on Friday afternoon of the father's time with his daughter, whether that should conclude on either of the Sunday the Monday or the Tuesday.  They are matters in dispute and that identifies the primary issue of time spent and the communication between father and daughter.  I carefully make no finding.

8. I will have these reasons transcribed for the benefit of the parties and the trial judge, whomever that may be, as it at least identifies the current issues.  I have very particularly and carefully put all solicitors on notice, and also counsel, that this matter is to be prepared and to be ready for hearing.  My own view would be if it is not, then it gets no other chance or opportunity in this court in the foreseeable future.  It simply has had enormous time.  I am conscious that the mother's solicitor now appears pro bono, and otherwise the community through either the Department of Education or through Victoria Legal Aid are funding the other parties.  That is not said in any way as a criticism, but the issues are not as to residence, they are ancillary and consequential issues which although of importance, should have been capable of some level of discussion between the parties and others. 

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

………………………………………………………..
Associate:          
Date: 27 August 2007