Adel and Banes (No 2)

[2019] FamCA 137

FAMILY COURT OF AUSTRALIA

ADEL & BANES (NO. 2) [2019] FamCA 137

PRACTICE AND PROCEDURE – Case management where father who is overseas fails to appear – where Court satisfied that father has been accorded procedural fairness.

EVIDENCE – USB stick is a “document”

Convention of 25 November 1980 on the Civil Aspects of International Child Abduction
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

APPLICANT: Ms Adel

RESPONDENT: Mr Banes

INDEPENDENT CHILDREN’S LAWYER: MR M FINN

FILE NUMBER: MLC 3771 of 2017

DATE DELIVERED: 19 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Qureshi

SOLICITOR FOR THE APPLICANT: Starnet Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. This matter be fixed for final hearing before me on 22 July 2019 at 10.00 am estimated to take 4 to 5 days (“the final hearing”).

2. That all extant interim applications be otherwise dismissed.

3. Each parent file and serve an undertaking as to disclosure by 19 March 2019.

4. To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue provided that such subpoenas are made returnable up until 1 July 2019;

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

   a)     The applicant mother by not later than 1 May 2019;

   b)     The respondent father by not later than 27 May 2019;

   c)     The independent children’s lawyer not later than 31 May 2019; and

   d)     The applicant mother in reply by not later than 7 June 2019;

   NOTING THAT the parties may not rely on affidavits already filed (see Rule 15.06 of the Family Law Rules 2004).

6. I relieve the parties from compliance with Rule 15.08(2)(b) of the Family Law Rules so that all annexures identified in an affidavit are to be attached to the affidavit and accepted for filing.

7. Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and child X born … 2013 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 not before 1 April 2019 and be released by not later than 1 June 2019 AND IT IS NOTED THAT an earlier preliminary report has been prepared by Dr H.

8. The family report deal with the following matters:-

   a)      any views expressed by the child and any factors (such as the child’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 whether the child’s welfare requires this Court to vary the Californian order which provides that the child live with the father and whether the child’s welfare will be adversely affected if the Californian order is not varied;

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

   e)      recommendations about what parenting arrangements would be suitable and in the child’s best interests if:-

   i.the father remains living in the State of B in the United States of America and the child and the mother remain in Melbourne;

   ii.the father, the child and the mother live in Melbourne; and

   iii.the child and the mother return to the State of B and the father lives in the State of B.

   f)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child’s best interest to the greatest extent possible.

9. By not later than 15 July 2019, each party file and serve:-

   e)     a case outline document; and

   f)     a list of documents to relied upon by that party –

   and send same to my Associate by email.

10. The case outline document summarise that party’s parenting 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 the child’s welfare requires this Court to vary the Californian order and, if so, in what terms;

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

    h)     What parenting orders are sought by that party;

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

11. By not later than 18 July 2019 the independent children’s lawyer provide to each other party to the proceedings and by email 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.

12. IT IS DIRECTED that any party wishing to cross examine on a document or tender a document into evidence at the final hearing, ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).

13. IT IS DIRECTED that the independent children’s lawyer give consideration to preparation of a court book of documents to be referred to or tendered during the trial and contact my Chambers well prior to the final hearing if he/she thinks that a court book would assist in the expeditious running of the hearing.

14. The independent children’s lawyer forthwith send the mother an application form for assistance through Victoria Legal Aid.

15. The mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, in the week commencing 8 July 2019 and the independent children’s lawyer notify my Associate as soon as possible of the date and time of the conference, once appointed.

16. IT IS REQUESTED that the family consultant, Dr H, be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 35 of this Order.

17. Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-

    j)      any family report;

    k)     any document referred to in this Order;

    l)      any document filed in these proceedings and any transcript of viva-voce evidence of a family consultant; and

    m)    any other report by a professional in this matter that the independent children’s lawyer considers is necessary.

18. By not later than 1 April 2019 the father advise the other parties to the proceedings whether he will attend in Melbourne for assessment interviews for preparation of the report in April 2019 and/or the trial in July 2019.

IT IS DIRECTED:

1. That a copy of this Order be sent to the State Central Authority.

2. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

   AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adel & Banes (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3771 of 2017

Ms Adel

Applicant

And

Mr Banes

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me for mention to clarify that there are no parallel proceedings being undertaken in the United States of America between the parents concerning the child, X, born in 2013.  I expected that the applicant father would appear either by representation or by electronic means today.  There is no appearance by him or on his behalf.  There has been no request for his attendance by electronic means.  He is clearly familiar with the process whereby he can appear remotely, having made an earlier request (which was granted).  Before I came down to Court, my Court Officer endeavoured to contact the father by the telephone number which we have previously used.  It was engaged.  Since I have been in Court, we have tried to contact the father at that telephone number without success.  The tone indicated that the line was engaged.  The matter has been called outside the door of the Court.  There is no response to the call.

2. I am informed from the bar table that the father last had telephone communication with X on Sunday and the mother understood that at that time the father was still in the United States of America.

3. Today Mr Qureshi, Solicitor, appears on behalf of the mother.  The mother attends Court.  Mr Finn attends as independent children's lawyer.

4. The father was in attendance electronically on 3 January 2019 when the matter was expressly adjourned to today unless the matter was brought on earlier by virtue of an application being filed under the Convention of 25 November 1980 on the Civil Aspects of International Child Abduction.  As I will later discuss, no Hague return application has been filed.  It was abundantly clear from the order made on 3 January 2019 that the matter would be before the Court today at 9 am.  I am satisfied that the father has been accorded procedural fairness and is aware that this matter is before the Court today.

Father’s failure to provide particulars

1. On 3 January 2019 I made various orders.  Two orders are of significance here.  The father made a complaint about the mother’s compliance with the orders for X to have electronic communication with the father.  He informed the Court that the communication, and the mother’s interference, were recorded.  The father was required to make that evidence available, paragraph 8 of the Order provided as follows: 

   8. The father do all acts and things necessary to send to the independent children’s lawyer four copies of the material to which he refers as recordings of electronic communication between himself and the child in his affidavit sworn or affirmed on 27 December 2018 and that such material be sent by USB stick (4 copies) to the independent children’s lawyer and then produced by the independent children’s lawyer as follows:

   a)Two copies to the subpoenaed documents clerk of this Registry of the Court;

   b)One copy to the practitioners for the mother;

   c)One copy to be retained by the independent children’s lawyer.

2. The order also provided that the mother respond and her response paragraph by paragraph is required.  That is, by paragraph 10 of the order made on 3 January 2019, which provides as follows: 

   10. By not later than Friday 11 January 2019 the mother make file and serve any affidavit material upon which she relies in response to the affidavit of the father sworn or affirmed on 27 December 2018 NOTING THAT if the mother fails or neglects to file responding evidence she will be deemed to have admitted the matters deposed to by the father.

3. Today Mr Qureshi says that his client has not filed any responding material because the father has failed or neglected to send the documentation (including the USB stick).  For the avoidance of doubt, a USB is a document as defined by the Evidence Act1995 (Cth) which provides that “document” means any writing or record of information, and includes:

   (a) anything on which there is writing; or

   (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

   (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

   (d) a map, plan, drawing or photograph.

4. The mother’s position is that she cannot respond to the allegations referred to by the father without him providing the particulars which, the father said, would be contained in the USB which he has and told the Court he would send.  I am satisfied that is the case.

5. I will extend the time for compliance by the father and the mother with their obligations under paragraphs 8 and 10 of the earlier orders.

Family report

1. I ordered that a report be prepared pursuant to regulation 26(1) of the Family Law Regulations1984 (Cth). I did that on the basis that the father assured the Court that he would be filing a Hague return application. Whereas most applications in Australia are filed by the Commonwealth Central Authority or a State Central Authority under delegated power, the father is entitled to file his own return application. No application has been filed (by anyone).

2. The Hague preliminary report was nonetheless undertaken with X being seen on 17 January 2019.  The report is dated 22 January 2019 and has been released to the parties. 

3. The preliminary report is on its face very helpful in relation to a Hague proceeding, but it does not, understandably, go into the best interests considerations as required for a parenting case and furnished to the Court in a report under section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).

4. The State of B order has been registered in Australia.  It provides that X live with the father in the State of B and for the mother to have virtual visitation for 30 minutes on 5 days per week or face to face visitation under supervision.

5. The issue, as discussed by me in my reasons for decision of 10 October 2018, is whether there are substantial grounds for believing that X’s welfare requires this Court to exercise its jurisdiction to vary the State of B order.  In this sense it is to the child’s welfare that a full family report must be obtained. 

6. Furthermore, the full family report will provide evidence which will inform the Court, as required under section 70J(2) of the Act, on the issue of whether the welfare of is likely to be adversely affected if I do not vary the order. If I am satisfied on the evidence that a variation is needed, I would proceed to cancel registration of the overseas order and make parenting orders in Australia.

7. I have made inquiries and understand that the full family report will be able to be prepared by Dr H by 1 April 2019.  I will make orders that facilitate preparation of that report.

Directions for final hearing

1. The earliest dates for hearing which I have in my calendar are in July, 2019.  The matter will be fixed for hearing before me on 22 July 2019 estimated to take four to five days. 

2. Each party file an undertaking as to disclosure by 19 March 2019 and there will be no limit on subpoenas. 

3. The mother is paying for these proceedings privately.  She is retaining Starnet Legal Pty Ltd.  She has paid some $3000 in costs to date.  Mr Qureshi indicated that she has a “longstanding relationship” with the legal firm and that they have agreed to defer payment.  I am concerned that the mother may not have been offered the option of being legally assisted through Victoria Legal Aid.  I cannot be certain of course, that that is the case, but Mr Qureshi did specify that his firm “does not do Legal Aid”.  I will also make a direction that the mother be provided by the independent children's lawyer with an application for assistance from Victoria Legal Aid.  It is of course up to her whether or not she makes an application avails herself of making an application.

4. Mr Qureshi informs the Court that to date his client has paid $3200 and has outstanding costs and disbursements or unbilled costs and disbursements of $4200.  He says that Starnet Legal Pty Ltd are a firm which apparently has a significant number of Country T clients and Mr Qureshi assures me that his client has always been aware of her entitlement to seek assistance from Victoria Legal Aid.  Nonetheless, the mother should be sent an application form.  As I have earlier indicated, it is up to her whether or not she completes it. 

Father’s attendance in Australia

1. There remains an issue about whether or not the father will attend in Australia for preparation of the s 62G(2) family report and for the trial. It would be preferable if he did attend.

2. In any event, the father should specify by not later than 1 June 2019 whether he will be attending.  Obviously if the father does attend, appropriate arrangements should be considered which may enable him to spend time with the child whilst he is here and I will reserve liberty to apply for that purpose. 

Parties must be ready to proceed at the final hearing in July 2019

1. Neither parent should be under any misapprehension that the hearing set down for July 2019 will be adjourned if he/she is not ready to proceed.

2. The parents know what documentation they have to file and serve.  Whether or not they have legal representation to do so is a matter for them.  If they do have lawyers, it will be much easier for each of them personally to conduct these proceedings. 

3. Whether or not they have lawyers, the responsibility to be ready for the hearing in July is a personal responsibility attaching to each of them.  They must now start to prepare their case for final hearing in a way that, in the event that at the last minute they did not have lawyers to represent them, they would still be ready to proceed with the case in July 2019. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 February 2019.

Associate: 

Date: 13 March 2019