Alderson and Milburn

[2019] FamCA 366

FAMILY COURT OF AUSTRALIA

ALDERSON & MILBURN [2019] FamCA 366

FAMILY LAW – PRACTICE AND PROCEDURE– Where parties fail to engage in proceedings – Where in the circumstances it is appropriate to make order dismissing all applications.

Family Law Act 1975 (Cth)

APPLICANT: Mr Alderson

RESPONDENT: Ms Milburn

INDEPENDENT CHILDREN’S LAWYER: Ms Hernandez

FILE NUMBER: PAC 4007 of 2016

DATE DELIVERED: 26 April 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 April 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance by Legal Aid NSW Sydney Central Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance by Claremont Legal

Orders

1. All applications before the Court be dismissed.

2. The proceedings be removed from the pending cases list.

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 Alderson & Milburn 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 PARRAMATTA

FILE NUMBER: PAC 4007 of 2016

Mr Alderson

Applicant

And

Ms Milburn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are long-running parenting proceedings commenced in August 2016.  The parenting proceedings involve the child, X, born in 2013.

2. The proceedings were before this Court for interim hearing on 20 November 2018, and in respect to that interim hearing, Reasons for Judgment were delivered and orders made on 13 December 2018. 

3. Those orders provided that the mother and child be permitted to leave the Commonwealth of Australia without the consent of the father. Such an order was made on an interlocutory basis in unusual circumstances more fully set out in those Reasons for Judgment reported as Milburn & Alderson [2018] FamCA 1071 on that day.

4. The mother was the subject of significant family violence in the relationship and, indeed, as a consequence of the combined actions of the father and the paternal grandmother, was forcibly repatriated by them to her home country.  As a consequence of that forcible repatriation, both the father and paternal grandmother have been charged with human trafficking offences and are facing significant periods of imprisonment if the offences are proved.

5. As a consequence of the orders made on 13 December 2018, proceedings were further adjourned to this Court on 18 February 2019 in circumstances where it became apparent that, subsequent to orders being made, the mother and child departed the Commonwealth of Australia on 14 or 15 December 2018 with no intention of returning.

6. On 18 February 2019, leave was granted to the solicitor for the mother to withdraw from the proceedings.  Further, leave was granted to the Independent Children’s Lawyer to withdraw from the proceedings and the appointment of the Independent Children’s Lawyer was discharged. 

7. Otherwise, the father’s outstanding applications for parenting orders in relation to the child were adjourned to today’s date, noting that, subject to the father confirming that the mother had returned with the child to Country C, he proposed to file a Notice of Discontinuance, and in that event the adjourn date will be vacated.

8. The father’s solicitor filed a Notice of Ceasing to Act on 18 April 2019 subsequent to the matter being adjourned to today’s date.  It is now 10.30 am, and the matter has been called on several occasions since the time of its listing at 9.30 am.  There is, understandably, no appearance by or on behalf of the mother, and there is no appearance by or on behalf of the father. 

9. Accordingly, and in the circumstances of this matter, it is appropriate that all applications before the Court be dismissed and the matter be removed from the pending cases list.  Those orders will be made accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 April 2019.

Associate: 

Date:  26 April 2019