Wiupa and Kogoya

[2007] FamCA 223

FAMILY COURT OF AUSTRALIA

WIUPA & KOGOYA [2007] FamCA 223

FAMILY LAW - PRACTICE AND PROCEDURE - Late service of material precludes matter from proceeding – Forum to be determined on next occasion subject to the discretion of the trial judge.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wiupa

RESPONDENT: Ms Kogoya

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLF 3213 of 2006

DATE DELIVERED: 2 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S.S. Buchanan

SOLICITOR FOR THE APPLICANT: Kennedy Wisewoulds

COUNSEL FOR THE RESPONDENT: Mr Mulvany

SOLICITOR FOR THE RESPONDENT: T J Mulvany & Co

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Small

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That the father have leave file three affidavits all sworn 1 March 2007 and to rely upon them in these proceedings.

2. That the further hearing of this matter be adjourned to the Magellan Duty List on 30 March 2007 at 10:00am before the Honourable Justice Brown and subject to Her Honour’s discretion, the mother’s application for a transfer of these proceedings to Brisbane be determined on the adjourned date.

3. That any further affidavit material to be relied upon by the mother be filed and served by not later than Tuesday 27 March 2007.

4. That on or before 23 March 2007 the independent children’s lawyer collate from documents produced to the court pursuant to subpoena and any other sources a bundle of documents which she considers are relevant to issues concerning the children and provide such documents to my Associate to be put into a court book common to all parties and without prejudice to the right of any party to object to the admissibility of any of the documents.

5. I DIRECT that my reasons for judgment be transcribed and when transcribed the original be placed on the file and a copy sent to each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3213 of 2006

MR WIUPA

Applicant

And

MS KOGOYA

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Magellan duty list and concerns the children M and Y born in April 2003.  The mother and the children are in Brisbane and have been since May 2006.  The father is in Melbourne, he is part of the West Papuan community. 

2. These proceedings were commenced in the Federal Magistrates Court by the father's application which was filed in August 2006 in which he sought, amongst other things, an immediate return of the children to Victoria and that he spend time with the children. 

3. The matter proceeded in that court and was set down for a final hearing on 13 November 2006 before Burchardt FM.  In anticipation of that final hearing, the mother filed a number of documents on 8 November 2006, they included lengthy affidavit material in response to that of the father but also raising discrete and new allegations of serious domestic violence which had in part been witnessed by the children.  She also filed a Notice of Child Abuse, alleging sexual abuse and exposure to domestic violence. 

4. On 13 November 2006 the matter was transferred by Burchardt FM to this court.  It seems that no orders were made then or since for the father to respond to the affidavit material of the mother which raised the very serious concerns. 

5. Today counsel for the father sought leave, which I granted, to file documents, being an affidavit by the father affirmed yesterday.  It is 116 paragraphs over 13 pages.  There is also an affidavit by Mr D, who is a student, and there is an affidavit by Mr R, who is also a member of the West Papuan community in Victoria.  The latter witness deposes that he was present when the mother agreed that she would travel to Brisbane but return to Victoria by June or July 2006.  That is but one issue in the proceedings. 

6. The mother says that she is prejudiced by the late filing of the documents.  The documents were sent to her solicitor, Mr Mulvany only yesterday.  It is common ground that the parents each require the assistance of an Indonesian interpreter.  Those interpreters are, I am told, not easy to come by.  I am satisfied that the mother's practitioners had absolutely no reasonable prospect of obtaining instructions from the mother in relation to the material upon which the father wishes to rely today.  

7. The independent children's lawyer says that for her part she is not prejudiced by the late service and filing of the documents.  The position of the independent children's lawyer is that the proceedings are most appropriately to be conducted in Melbourne on the basis that the majority of witnesses relevant to the events in issue are Melbourne based.  That is not necessarily determinative.  She concedes however that the mother would be prejudiced by the late service.  It is not argued on behalf of the father that the mother is not prejudiced.  Accordingly, I will adjourn the proceedings to 30 March 2007 for a determination in relation to venue. 

8. There are a few things about which I would make observations.  One is that the father has not seen the children since May 2006.  He has travelled twice to Brisbane, once a trip that he paid for himself, and he has not been able to see the children on either occasion.  However, having regard to the history of the matter immediately prior to separation, it seems that a reintroduction of time between the father and the children may not necessarily be straightforward even once it is determined where the proceedings ought be conducted.

9. I was advised from the bar table by the father's barrister, Ms Buchanan that since August last year the father has travelled twice to Canberra and once to Sydney.  The three trips interstate since August 2006 have been paid for by an Australian political organisation.  I have made a direction that the mother file and serve any further material prior to the adjourned date.  That is not an invitation to file material, it is merely a requirement that if she does want to rely on material it be filed within a sufficient time for the father to be able to give instructions in relation to it. 

10. Because the matter will necessarily return to a busy duty list of serious cases involving children I have also directed that the independent children's lawyer collate from the documents produced pursuant to subpoenae and from any other sources a bundle of documents which she considers would be relevant to this case.  It seems to me, looking at the source of many of the documents, they would be admissible as business records.  I will reserve the right to any party to object to the admissibility of the documents, but I want them collated for the Honourable Justice Brown prior to 30 March 2007.  I want to avoid counsel, much less the Court, looking through bundles of envelopes for documents which may be relevant to the application to transfer the proceedings to Brisbane, or, likewise, for the mother to return to Melbourne. 

DISCUSSION

1. We have had the assistance of Ms B giving some insight into the assessment process offered to cases in this highly-resourced Magellan list.  It appears that there may not be a comprehensive report by Protective Services in Brisbane.  The father seeks time to be spent with the children on an interim basis.  However, as Ms B has indicated, prior to that occurring it would be appropriate to have the children assessed to gauge their level of fear or apprehension and attachment to the father and also to assess what effect, if any, such time would have on the mother. 

2. Counsel for the father has foreshadowed that her client is likely to seek an interim determination based on an interim assessment of the father and the children.  It is obvious that the issue of forum has to be decided, because it is not known whether the mother and the two children should travel to Melbourne to be assessed and the children seen with the father in Melbourne or if the father should travel to Brisbane and be assessed with the children.  The overwhelming concern of the father is clearly that the proceedings continue to move towards some form of contact being established between the father and the children.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  19 March 2007

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