Zarins and Mylne (No 6)

[2013] FamCA 1128

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE (NO 6) [2013] FamCA 1128

FAMILY LAW – PROCEDURAL – Trial date vacated until father’s criminal proceedings have been heard – father charged with rape of the mother.

Family Law Act 1975 (Cth)

APPLICANT: Ms Zarins

RESPONDENT: Mr Mylne

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4802 of 2008

DATE DELIVERED: 9 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 9 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Belchamber

SOLICITOR FOR THE APPLICANT: Belchamber Legal

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

IT IS ORDERED THAT

1. The trial listed to commence not before 23 July 2013 be vacated.

2. Paragraphs 10, 11 and 12 of the orders made 25 February 2013 be discharged.

3. The mother file and serve any further amended application in a case and any affidavits in support of that application by 4.00 pm on 12 July 2013.

4. The father file and serve any further amended application in a case or any response to the mother’s amended application in a case and any affidavits in support by 4.00 pm on 23 July 2013.

5. The interim applications of the father and mother as amended be listed for hearing before me at 10.00 am on 31 July 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne 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: ADC 4802 of 2008

Ms Zarins

Applicant

And

Mr Mylne

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS

1. This matter is listed for mention before me, having been listed for trial commencing not before 23 July 2013. 

2. On 4 July 2013 the father filed an application in a case in which he sought various orders including an order that the trial, listed to commence not before 23 July 2013, be vacated. 

3. On 31 May 2013 the father was charged with three counts of rape.  The alleged victim in each case is the mother in this case. The offences are alleged to have occurred in 2008 and although it is not clear whether these alleged offences have been the subject of affidavit evidence by the mother on previous occasions, it appears to be common ground that even if there has been some evidence in relation to these offences they have not been particularised.  I am also advised this morning that there may be further charges laid against the father in relation to the assault of the mother’s son J.

4. The father has been placed on bail to appear at the Magistrates Court at M Town on 10 July 2013.  It is at this stage not possible to say when any trial might take place, but it is unlikely to be any less than 12 months from now, and could be significantly longer. This matter was previously listed for final hearing before me late in 2012 and for various reasons, which are referred to in my reasons for judgment dated 30 April 2013, the child the subject of the proceedings has been living with the father and spending supervised time with the mother. 

5. The parties all agree that the appropriate course is for the trial to be vacated until the criminal charges have been dealt with.  It is the mother’s case that she proposes to file an interim application seeking to vary the orders with respect to the child spending time with her pending a final trial, and that I should make directions for the filing of that application, and if possible deal with that matter during the time that I am in Adelaide and would have otherwise been hearing the matter on a final basis.

6. I am not necessarily of the view that matters cannot be dealt with by this Court when there are criminal charged pending. I have reservations about the matter not proceeding, in a general sense, not specifically with respect to this matter, however in the light of the fact that all the parties agree that the appropriate course is for the trial to be vacated, and particularly as it is the view of the Independent Children’s Lawyer that the current arrangements for the child are appropriate, subject to any orders I or any other judge hearing the matter might make with respect to the time the mother spends with the child in the interim, I propose to accede to the father’s application that the trial be vacated. 

7. I will make orders with respect to the filing of any further interim application.  The parties agree that the other procedural matters included in both of their applications in a case with respect to the father providing documents in relation to these proceedings to his criminal law solicitor, and with respect to the mother’s application for a s 128 certificate can be also dealt with at the same time.  It follows that if the trial is to be vacated, it will not be necessary for the father to file his trial affidavits, although it will, obviously enough, be necessary for him to file affidavits in response to any interim application the mother may make. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 9 July 2013.

Associate: 

Date:  21 May 2013