Xiu and Hodges

[2017] FamCA 131

FAMILY COURT OF AUSTRALIA

XIU & HODGES [2017] FamCA 131

FAMILY LAW – CHILDREN – Extempore ruling – where the mother seeks an adjournment of her application – where the father opposes the adjournment – adjournment granted for the mother to file an additional affidavit – leave granted for the father to file any affidavit in response

Family Law Act 1975 (Cth)

APPLICANT: Ms Xiu

RESPONDENT: Mr Hodges

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 7 February 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Miss Stoilkovska

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

THE RESPONDENT: In Person

Orders

1. That the mother have leave to file any further affidavits upon which she relies by 4.00pm on 3 March 2017.

2. That the father have leave to file any affidavit in response by 4.00pm on 24 March 2017.

3. That all extant applications be adjourned to the Judicial Duty List at 10.00am on 5 April 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xiu & Hodges has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6222 of 2008

Ms Xiu

Applicant

And

Mr Hodges

Respondent

REASONS FOR JUDGMENT

1. The matter of Xiu & Hodges comes before me today in a Judicial Duty List upon the Application in a Case of the mother filed 19 December 2016.  That Application is supported by her Affidavit filed the same date. 

2. The Application of the mother is that she be granted leave to file an Initiating Application to vary orders made on 14 February 2013.  The orders sought to be varied relate to parenting arrangements in respect of the parties’ son K (the child), who is now aged 14 years.  The child has been the subject of litigation in this Court since 2008.  At the time those orders were made by Justice Dessau in February 2013, her Honour observed that, in fact, the child had been the subject of three major rounds of litigation that had spanned almost 40 days or eight weeks of sitting time. 

3. Since that time, further applications have been filed by both the father and mother, and those applications were dealt with by Justice Cronin in February 2016, his Honour dismissing both applications.

4. The mother seeks an adjournment of her Application.  An oral application was made during the course of the hearing for the proceedings to be adjourned to enable the mother to obtain further evidence, particularly from the child’s school, as to their position and view with respect to his future educational needs.  At the centrepiece of the mother’s Application is her desire to have the child enrolled in mainstream school on Fridays. 

5. The orders currently provide that the child be home schooled by his father on those days.  Whilst the mother has some material from the child’s school, I observed during the course of submissions that that material was dated February 2016.  When I enquired of counsel for the mother as to whether there was more current information from the school as to the child’s progress and needs, indication was given that whilst the mother had some information from the school that information was not on affidavit.  Given the difficulties counsel faced, the matter was stood down briefly to enable her to obtain instructions.  Upon obtaining instructions the oral application for an adjournment was made.

6. It is put on behalf of the mother that there are serious concerns raised which necessitate the re-opening of litigation with respect to the child.  In particular, concerns are raised as to his future schooling needs, issues around his repeated late attendances at school, and further issues with respect to the child being taken to entertainment venues on evenings when in the father’s care. 

7. There are a myriad of other issues also raised by the mother in her material.  The adjournment is sought to enable the mother to obtain current material, and also to give her an opportunity to reflect and perhaps amend her Application so that the focus of any application is on issues sought to be ventilated, rather than a list of issues that have been agitated previously and which are not really issues sought to be raised in the context of this current application.

8. The father’s position is that he opposes the application for an adjournment.  He also opposes the application for leave.  The submission made by the father is that an adjournment of the proceeding will simply invite more engagement by the mother with the school, and will place the child’s teachers, the school principal and other professionals involved in his care under pressure by the mother to produce information that meets her needs.  His concern is that such pressure is undermining the child’s interests, and may result in those professionals withdrawing services currently available to the child. 

9. Given the history of the matter and particularly the history of the child’s treating medical practitioners withdrawing their services after repeated dispute and conflict and litigation in the preceding court applications, there is some justification for the father’s concerns. 

10. At the end of the day, I must balance the needs and interests of both parties.  I must look to whether the prejudice suffered by the father in granting the adjournment application is so great that it outweighs the interests of justice in providing that adjournment.

11. In considering the issues before the Court, I am satisfied that it is appropriate that there be a short adjournment to give the mother one final opportunity to place before the Court any current material that will assist the Court in determining whether or not leave should be granted to bring an application with respect to the child’s future parenting.  The issues raised by the mother particularly with respect to late school attendances and attendances at night time venues may be issues that require further consideration by the Court.  I note that the father says that they are not new issues. 

12. However, if the position is that the child is being presented late to school repeatedly, then this may well be a matter that the Court needs to consider, particularly having regard to the child’s special needs.

13. I am not going to provide a limitless opportunity for the mother to file material.  She must file material in an orderly fashion so that the father can consider that material with sufficient time to place before the Court any material upon which he seeks to rely prior to the adjourned hearing.  I note that the mother in her Affidavit filed 19 December 2016 sought to rely on previous affidavits filed in other proceedings.  I make it clear to both parties that this is an exercise at looking at the current position.  The position since the orders of Justice Dessau  were made, and particularly the position since the last hearing before Justice Cronin .  This Court is not going to embark on an historical journey through the affidavit material that has been filed since 2008.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 February 2017.

Associate: 

Date:  7 February 2017