Witnall and Brixton

[2011] FamCA 829

FAMILY COURT OF AUSTRALIA

WITNALL & BRIXTON [2011] FamCA 829

FAMILY LAW – PRACTICE AND PROCEDURE – Preparation for hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Witnall

RESPONDENT: Ms Brixton

INDEPENDENT CHILDREN’S LAWYER: Robert Halliday

FILE NUMBER: DGC 1058 of 2010

DATE DELIVERED: 12 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Brewer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

IT IS ORDERED THAT:

1.This parenting matter concerning the children R born … May 1996 and L born … August 2000 be fixed for final hearing before me on 9 January 2012 estimated to take 5 days.

2.This matter be listed for telephone mention before me on 4 January 2012 at 9.00 am for the purpose of checking on compliance by the parties with orders for the preparation for trial.

3.Until further order, each party is at liberty to cause subpoena to produce documents to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoenae.

4.The mother forthwith file a Notice of Address for Service.

5.That in anticipation of the final hearing, the independent children’s lawyer file and serve any expert evidence upon which he proposes to rely at the final hearing by 1 November 2012 and IT IS REQUESTED that the Director of Court Counselling of this Registry of the Court give urgent consideration as to whether there are any resources with which to obtain a release of Dr S’s assessment of the mother and the independent children’s lawyer then, if necessary, seek a re-consideration by Victoria Legal Aid to paying the outstanding fees of $1980.00 to Dr S.

6.The mother immediately notify the independent children’s lawyer in writing if she will pay for the report of Dr S.

7.In anticipation of the final hearing, each party file and serve any amended application or response and any affidavit material or proof of evidence in support of his/her case, as follows:-

a)The applicant father by 12 December 2011;

b)The respondent mother by 19 December 2011;

c)The independent children’s lawyer by 22 December 2011.

8.That each party has leave to contact Registrar Riddiford to arrange to have this matter listed for mention before himself or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.

9.There be liberty to apply and, in that respect, liberty is granted to all parties to jointly contact my Associate, in writing – email associate.justice [email protected] – in the event that the matter requires to be mentioned for the purpose of getting it ready for hearing.

10.A full family report be prepared pursuant to section 62G(2) of the Family Law Act 1975 the parties and children R born … May 1996 and L born … August 2000 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced on 23 November 2011 and be released as soon as possible thereafter AND IT IS NOTED THAT an earlier report/child and parent issues assessment has been prepared by Ms H.

11.That the family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)     an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children;

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest.

12.In the event that evidence by Dr S will be relied upon in this proceeding, the independent children’s lawyer forthwith ensure that Ms H, the family consultant; and Dr S, psychiatrist/psychologist each have a copy of the other’s report(s) in this matter together with any other document which the independent children’s lawyer considers would assist either expert to give evidence in these proceedings and in respect of which the other parties do not raise an objection.

13.The independent children’s lawyer facilitate such conference (including a conference by telephone) between the said expert witnesses as he considers appropriate and in respect of which he provides the other parties with prior written notice.

14.By not later than 3 December 2011 each parent file and serve:-

a.      a case outline document; and

b.      a list of documents to relied upon by that party –

and send same to my Associate, … – email [email protected].

15.The case outline document summarise the arguments in support of each party’s case including, but not necessarily limited to, the following issues:-

a.     Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and

b.     Whether it is the best interests of R born … May 1996 and L born … August 2000 to spend equal time with each parent and, if not, why not; and

c.      Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and

d.      What parenting orders are sought by that party;

e. Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.

16.Not later than 5 January 2012 the independent children’s lawyer provide to each other party to the proceedings and by facsimile to my Associate:-

a.     a chronology of relevant events;

b.     a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;

c.     a list of documents upon which the independent children’s lawyer intends to rely.

and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.

17.The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

AND IT IS NOTED BY THE COURT that in the event that a party fails or neglects to comply with this Order including, without being limited to, attending interviews for the family report, filing evidence and attending Court, the Court may determine the parenting matter finally on 9 January 2012 without any further input by the defaulting or non-complying party.

IT IS NOTED that publication of this judgment under the pseudonym Witnall & Brixton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1058 of 2010

Mr Witnall

Applicant

And

Ms Brixton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before the Court as a mention to check on the progress of telephone communication or supervised time between the mother Ms Brixton and the children, R who is 15 years old, and L who is 11 years old. The children reside with the father.

2. Today the father, Mr Witnall, appears in person.

3. Mr Brewer of counsel appears on behalf of the independent children's lawyer who is Mr Robert Halliday. 

4. The mother does not attend Court.  She was called at the door of the Court and there was no response.  An email was received from the mother dated Thursday 8 September 2011, which reads as follows[1]:-

   hi my name is [Ms Brixton]. i spoke to the family court register an was told that I need to fax this to the court as im am seeking an agournment. my court date is Monday the 12^th September 2011. i did tell the courts that this court case was to close to me giving birth as i am almost due to have a baby. i am also still waiting on reports that i need for court monday from the equal opportunity human rights commissioner, the high court, and I trying to appeal county court as [Mr Witnall] has not abided the court order, the disability discrimination commissioner, the dhs ombudsman, consumer law action centre, legal services commioner, disability intake and response unit, autism constitution courts, another childrens lawyer for [R’s] and [L’s] brother [Z] that has not had a say. a diferent childrens lawyer for [R] and [L], as i believe there lawyer is one sided un fair and doesn’t act for there best interest. im also waiting to hear from the unit manager and regional director as i have been discriminated bullied and had all my human rights taken away.  i also don’t live in victoria and i do not wish for that to be disclosed to my ex partner [Mr Witnall]. i have no lawyer as legal aid wont fund me, i have no money as [Mr Witnall] got all assets money and the kids through the courts and the childrens lawyer and [Mr Witnall’s] lawyer are always prepaired as i am not. so i really need more time for these impotant government agencies to get back to me as they are invesagating my case. this is a very impotant part of my affidavit and side of my case. also its to hard for me to drive back to victoria as im about to give birth even though i miss my kids very much and havnt seen since October last year i have not spoken to them since then either. and they don’t text me back or read the text I send them as I don’t get delivery reports feed back that happens when you open the text. So please understand  that i need till atlest late october to prepair and get those reports. thankyou [Ms Brixton] [phone number …]

   [1]          Exhibit “M1”

5. Passages quoted from Exhibit “M1” are reproduced verbatim; grammatical or spelling errors are not corrected. 

6. The mother did not request to be linked in by telephone to this mention today although it was open for her to do so. 

7. The independent children's lawyer points out that the mother's statement that the children have not seen her since last October is incorrect, or that may be the father who has pointed it out, she having seen them last November 2010, and again in the company of her parents in February 2011. 

8. No application has apparently been made by the mother or on her behalf for admission into B Contact Centre, notwithstanding the orders of 13 July 2011 that envisaged her doing so.

9. It appears that the mother has now moved interstate and it is apparent from the above quoted extract of email that she does not wish her address to be disclosed.  It is difficult to see how the mother's case for spending time with the children can be advanced if the Court does not know where she is living. At the very least this is an issue that she will need to address.

10. I am informed by counsel for the independent children's lawyer that the mother was requested to undergo supervised drug screens on 29 March, 13 April, 4 May, 8 June, 9 August and 7 September this year, but has not cooperated or submitted any results.

11. The independent children’s lawyer, Mr Halliday, has met with the children R and L, once whilst they were in the care of the mother and again after Senior Registrar FitzGibbon altered their living arrangements so that they are residing with the father.  His very preliminary indication is that the children are currently doing well and are happy in the care of the father.  I note that the mother mentions a possible application to remove the independent children's lawyer as she "believes their lawyer is one sided, unfair, and doesn't act in their best interests." That is not an application that will be entertained at the final hearing stage.  If the mother wanted to press that application she should have done so by now.  Absent a formal application being received, and there being grounds upon which the independent children's lawyer could be removed, the matter will proceed to a final hearing with Mr Halliday remaining as the independent children's lawyer.

12. The mother was assessed by Dr S who has prepared a report.  The cost of the report was $1980 and was to be met from proceeds of a property settlement to which the mother was entitled pursuant to proceedings in the County Court.  For reasons not immediately clear to me now, but no doubt to be revisited at  trial, the mother's lawyers released all of the proceeds of her entitlement to her without paying that amount and now Dr S will not release his report without payment.

13. I am informed that Mr Halliday has asked Victoria Legal Aid to meet the payment, but Victoria Legal Aid has refused.  I have today pronounced orders in which it is requested that the Court see if the Court can pay, although I am conscious that there is very severe budgetary constraint placed upon the Court at this point, including the Director of Child Dispute Services.

14. When the result is known if the Court has not been able to secure a release of the report I would request and expect the independent children's lawyer to make one last request for a reconsideration.  It is preferable that any report be available for the commencement of the family report. 

15. The designated family consultant is Ms H. A family report will be prepared by Ms H who did the previous children and parents' issues assessment. She will conduct her interviews on Wednesday 23 November 2011 in Melbourne.  It will be necessary for the parties to attend on that date.  The children will attend on that date.  All or some of them may be required to attend on dates subsequent to that.  I anticipate that the report will be released within about two weeks of those interviews.

16. The final hearing will be held in Melbourne on 9 January 2012.  It will be listed for approximately five days, although if one or both of the parents do not appear it is going to be significantly less time.  I have included a notation to the effect that if one party fails to comply with these orders by attending the family consultant, or in particular attending the hearing on 9 January, he or she should expect that the Court will proceed to determine the matter finally without any further input from them.

17. I have appointed the hearing date of 9 January because I am persuaded that it is in the interests of the children that they know where they stand as soon as possible for the commencement of the next school year in February 2012. If Court resources had permitted me to do so I would have listed it earlier, but, unfortunately, they do not.  My reasons for decision should be sent to the parties when they are settled.

RECORDED   :   NOT TRANSCRIBED

1. Mr Brewer for the independent children's lawyer correctly and helpfully points out that the address for service which has been included in the notice of ceasing to act by the mother's former solicitors is … S Street, Town 1 in Victoria, which is the address of the maternal grandparents of the children, but obviously not the mother's address if she has moved interstate.  I will therefore also order that the mother forthwith file a notice of address for service. 

2. The mother may apply to attend interviews or the Court by video link between this registry and another registry in Australia.  The costs of the Court maintaining that will be weighed at the time that I make a decision about whether or not she can be permitted to participate in the proceedings in that way.  Specific application ought to be made, if she intends to make it, as soon as possible, and certainly before the family consultant’s interviews are scheduled to take place.

3. The mother may approach the independent children's lawyer for some guidance in that regard although it is not the responsibility of the independent children's lawyer to run the mother's case, the father's case, or to advise either of them about how their positions can be advanced.  The independent children's lawyer would be able to indicate at an early point, however, whether he agreed or was agreeable to the mother's participation in that way.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 September 2011.

Associate: 

Date:  20 October 2011