Alsa and Ryans and Anor

[2007] FamCA 886

FAMILY COURT OF AUSTRALIA

ALSA & RYANS AND ANOR [2007] FamCA 886

FAMILY LAW – Summary dismissal – for want of prosecution

APPLICANT: MRS ALSA

RESPONDENT MOTHER: MS RYANS

RESPONDENT FATHER: MR ALSA

FILE NUMBER: NCF 494 of 2006

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 13 August 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT PATERNAL GRANDMOTHER Ms Little of Messrs Little & Associates, Solicitors

THE RESPONDENT MOTHER: Ms Ryans

THE RESPONDENT FATHER: Mr Alsa

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : Mr Stephen Marks, Solicitor

Orders

1. the mother's response filed on 24 October 2006 is dismissed for want of prosecution;

2. the paternal grandmother's application filed on 29 September 2006 is adjourned for an undefended hearing in a Judicial Duty List on a date to be fixed by the List Clerk. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Alsa & Ryans.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF494 of 2006

MRS ALSA

Applicant

And

MS RYANS

Respondent

And

MR ALSA

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings, on 11 September 2006, the Court record shows that there was a procedural event before the Registrar and the mother was present in person, the paternal grandmother was represented, and the father was present.  An order was made adjourning the proceedings to the trial notice list on 25 October 2006.   An order was made for the Independent Lawyer for the children to notify each of the parties in writing that if they failed to attend on the next occasion, the matter may proceed as an undefended hearing in his or her absence.

2. On 25 October 2006, the matter was listed before the Registrar for the trial notices to issue.  On that occasion the paternal grandmother was represented, as was the mother and there was no appearance by the father.  The Registrar made an order at that stage issuing trial notices and requiring the parties to file any affidavits in support of their applications by 3 January 2007.  On the same day, the matter was before me and the mother proposed to file an Application in a Case and I made an order that the mother file and serve the application and all affidavits in support no later than 8 November 2006.  The mother was represented by a legal practitioner.

3. The affidavits were not filed.  The mother filed no affidavits at all, nor did she file any Application in a Case.  In January 2007, a welfare report issued which recommended that the children continue to reside with the paternal grandmother.  That was contrary to the mother's application as she sought that both the children to reside with her.

4. It appears the next event was the pre-trial conference listed for 13 February 2007.  At that stage the parties thought the matter was settled.  The Registrar adjourned the matter to a further trial notice list on 11 April 2007.

5. On 26 March 2007, there was another event before the Registrar and it was noted that the matter was settled and a further appointment for a pre-trial conference was vacated.

6. On 11 April 2007, there were further appearances.  The mother was represented by a lawyer, the grandmother was also represented by a lawyer and the father appeared in person.  Again, the Registrar noted that the matter had been settled, but there were no consent orders available to be made, although for 2 months the parties and the lawyer for the children had been saying the matter was settled.  The Registrar adjourned the matter to 28 May 2007 for consent orders.

7. On 28 May 2007, the situation had changed;  it was agreed the matter was not settled.  The paternal grandmother was ordered to file any further affidavits by 9 July 2007.  There was no appearance by the mother and no appearance by the father.  The Registrar adjourned the matter to an undefended hearing of the grandmother's application on 23 July 2007 before a Judicial Registrar.

8. On 31 May 2007, the mother's solicitor filed a Notice of Ceasing to Act. Then on 23 July 2007 when the proceedings were listed for undefended hearing of the grandmother’s application,  the Judicial Registrar made various orders which included a notation that the mother had appeared in Court that day and wanted to oppose the grandmother's amended application.  The grandmother requested the mother's response be listed to enable the grandmother an opportunity to apply for that response to be dismissed for want of prosecution and accordingly the matter has been listed today for that purpose.  Hence the matter was with the mother’s knowledge listed today.

9. It is now more than nine months since the mother was ordered to file the affidavits in support of her response and she has not filed any affidavit.  Similarly, in relation to the application of the case that she proposed to file, she filed neither the application nor any affidavit in support of it. 

10. The mother today says that she is unable to prepare for the hearing because she is not legally represented.

11. I am satisfied that the mother is unlikely to participate in the hearing in any meaningful way and will not comply with the directions of the Court for preparation for a defended hearing.

    RECORDED   :   NOT TRANSCRIBED

    ORDER DELIVERED

1. The next step will be that there will be an undefended hearing in relation to the grandmother's application and she will provide a list of the documents she wants the Judge to read in order to determine that application. 

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

Associate: 

Date:  23 August 2007