BENNET & CARTER
[2013] FMCAfam 149
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BENNET & CARTER | [2013] FMCAfam 149 |
| FAMILY LAW – Practice and Procedure – application for review of Registrar’s decision – application for review dismissed – no jurisdiction as short notice sought in Response. FAMILY LAW – Practice and Procedure – objection to subpoena issued to Department of Immigration and Citizenship dismissed – documents relevant to the substantive proceedings before the Court. |
| Family Law Rules 2004, r.5.05(4) Federal Magistrates Court Rules 2001 r.1.05 Evidence Act 1995, s.55 Family Law Act 1975, ss.60B, 68L, 68LA International Convention on the Rights of the Child |
| Myers & Myers [2011] FMCAfam 1104 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MS BENNET |
| Respondent: | MR CARTER |
| File Number: | PAC 5816 of 2012 |
| Judgment of: | Harman FM |
| Hearing date: | 30 January 2013 |
| Date of Last Submission: | 30 January 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | McPhee Kelshaw |
| Counsel for the Respondent: | Ms Cominos |
| Solicitors for the Respondent: | Cominos Lawyers |
ORDERS
The Application for Review filed by the father on 14 January 2013 is dismissed.
The objection to the subpoena issued to the Department of Immigration and Citizenship is dismissed and leave is granted to the parties, the legal representatives for both parties and the Independent Children's Lawyer (once appointed) to inspect material produced on subpoena by the Department of Immigration and Citizenship.
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the children the subject of these proceedings, [X] born [in] 1999 and [Y] born [in] 2001.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall within seventy-two hours of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seventy-two hours (or forthwith upon filing) forward to the Legal Aid Commission (Parramatta Office) copies of all any documents filed by them in these proceedings together with:
(a)Any medical reports they hold relating to the children;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the children;
(c)Any school reports they hold for the children;
(d)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the children to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the children.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9.00am on 31 January 2013 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their children the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is a appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
By consent each of the parents is to:
(a)Ensure they keep the other advised at all times of their residential address, email address and relevant contact telephone number/s (being mobile and, if connected to their residence, landline) to enable communication to occur between the parents and between the children and their parents;
(b)Do all things necessary to ensure the children can communicate with each parent at all reasonable times and with reasonable frequency with such communication to occur by all and any available means including telephone, skype and other electronic based communications.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THE COURT NOTES THAT:
The matter is otherwise listed in the Duty List on 4 March 2013 at 10.30am.
IT IS NOTED that publication of this judgment under the pseudonym Bennet & Carter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5816 of 2012
| MS BENNET |
Applicant
And
| MR CARTER |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today by way of an Application for Review filed 14 January 2013 by the father, Mr Carter.
That Application seeks to review a decision of a Registrar of the Court, purportedly made 11 January 2013, which decision purports to relate to a refusal to grant short service.
The substantive proceedings to which that determination relates are proceedings commenced by Application filed by the mother,
Ms Bennet.
The proceedings relate to two children, [X] born [in] 1999 and [Y] born [in] 2001.
The Respondent in the substantive proceedings is the children’s father, Mr Carter and who, today, seeks to prosecute his Application in a Case seeking review.
The factual circumstances of the proceedings are not complex at least to the extent that they relate to the review.
The substantive Application was filed on 24 December 2012. A Response was filed on 11 January 2013 and subsequently an Amended Response was filed 17 January 2013.
There are existing parenting orders in force between the parties being orders made by consent in a Local Court of New South Wales on 9 September 2005. Those orders provide that the children and each of them shall reside (in the terminology then current) with their father and have contact with their mother for periods of time during school holidays.
At the time that the orders were made it is apparent, from that which has been submitted by Counsel for each of the parties, that the children were living with their father in Queensland and the mother was living in New South Wales.
Since that time, and it would seem in the latter part of 2012 and roughly corresponding with the Application made by the mother, the father has changed his employment and thus his place of residence and has moved from Queensland to [omitted] in Western Australia.
There is thus controversy as to whether the children will remain with the mother in New South Wales, it being the father’s contention that the children had gone to the mother for a period during the holidays and have not been returned.
The mother’s contention is that the children do not wish to reside in Western Australia. There is thus significant issue with respect to the children’s view which I shall return to shortly.
The substantive proceedings are not before the Court today. The only Application before the Court today is the Application for Review to which I have referred.
There are other issues to be dealt with today, including:
a)Determination of an objection to a subpoena for the production of documents. The subpoena has been issued at the request of the attorneys for the mother and addressed to “The Proper Officer, Department of Immigration and Citizenship”;
b)The appointment of an Independent Children’s Lawyer, which would appear to be by consent;
c)The parties’ attendance with their children at a Child Inclusive Child Dispute Conference which is, again, an order which can be made today by consent; and
d)A number of ancillary issues relating to the children speaking with and communicating with each of their parents by telephone, Skype or other electronic means, and each parent keeping the other advised, at all relevant times, of their address and contact details to facilitate such communication. Those orders, again, can ultimately be made by consent.
The Review
A number of decisions have recently occupied the Court’s time and that of the Full Court with respect to reviews and the power of the Court to conduct a review of a determination by a Registrar and, specifically, whether such determinations are administrative in nature and thus dealt with under administrative legislation or an exercise of discretion under the Family Law Act.
One need turn no further than the decision of Halligan FM in Myers & Myers [2011] FMCAfam 1104 endorsed and adopted by the Full Court as abundantly and perfectly canvassing and concluding that controversy.
In any event, I am not satisfied that such controversy even arises in this case.
It is important to note that the application made to the Registrar, or purporting to have been made, on 11 January 2013 was an Application, as referred to in the father’s material, to grant short service to a Response. In reality it was an application to abridge time pursuant to Rule 5.05[1] of the Family Law Rules 2004 (which apply mutus mutandi to proceedings in the Federal Magistrates Court[2]).
[1] Rule 5.05(4) The Registry Manager may fix an earlier date for the hearing of an Application in a Case, or an Initiating Application [emphasis added] (Family Law) in which application is made for interim, procedural, ancillary or other incidental orders, if a Registrar is satisfied that:
[2] See Regulation 1.05 Federal Magistrates Court Rules 2001
In my mind the application suggested to have been made to the Registrar is a fiction if not a nonsense. I do not use that terminology to be insulting either of the attorney who has purported to have made such application or to the Registrar. However, a Response is not allocated a hearing date.
A Response responds to an Application which is allocated a hearing date. Accordingly, any abridgement of time for the listing of an Application is an exercise of the Court’s discretion appropriately exercised on the application of the Applicant. The Applicant has not sought to invoke such jurisdiction.
If the Respondent to an Application initiating proceedings seeks to have proceedings brought before the Court urgently (and more urgently that the hearing date allocated to the Application with which they are served) then they can and should do so through the filing of an Application in a Case raising and creating a separate and discrete Application for interim relief and including abridgement of time and which application is then capable of determination by the Registrar or by some other officer of the Court.
In short, I am not satisfied that any “application” within the Court’s jurisdiction had been made or could have been made to short list a Response filed in Response to an Application. It simply cannot occur.
On that basis, I find that I am without jurisdiction with respect to the review, as, indeed, was the Registrar. Accordingly, the review must be dismissed.
Objection to Subpoena
The subpoena addressed to the Department of Immigration and Citizenship seeks production of documents in the following terms:
Records of the arrival in Australia and departure from Australia, of Mr Carter born [in] 1973, during the period 1 January 2000 to date including but not limited to:
a. The dates of arrivals and departures;
b. Flights or vessel details for each departure and arrival.
Documents have been produced in response to the subpoena and are held by the Registry.
The Notice of Objection gives the following grounds:
a)That the information sought by the applicant mother is private and not relevant to the current proceedings;
b)The applicant Mother, is seeking information on a speculative basis, primarily to find out about my work routine and to support a case for herself, against me in the current proceedings.
There are now before the Court, and returnable on 4 March 2013, competing parenting Applications that seek substantive orders in relation to these children.
It would seem from the mother’s Application that she seeks to set aside the orders that were made by the Local Court at Liverpool and to obtain orders in her favour that both children live with her on a permanent basis and spend time with their father of similar nature to that which they have spent with the mother under the operation of the current orders during school holiday periods.
The Response filed by the father also seeks a variation of the existing orders, not only to bring the arrangements into line with present terminology but also to effect a departure from that which has been operating under the orders of 2005.
Thus each of the parents, it would seem inferentially if not otherwise from their respective Application and Response, seek a variance through discharge and, on an interim basis, suspension of interim orders.
On that basis one would assume that no Rice & Asplund (1979) FLC 90-725 issue will be raised by either parent. That is particularly so as each parent seeks to affect a substantial change to care arrangements. Further, a substantial and significant change in circumstances has, in any event, occurred being the proposed movement of the children’s primary place of residence and their schools from the east coast of Australia to the west.
The documents that are sought with respect to the father’s passage from Australia and return could not, in my mind, be described as irrelevant to the proceedings.
A limb of the mother’s case is that the father has been anything other than diligent in consulting with her and keeping her appraised of arrangements with respect to the children. The mother puts in issue care arrangements for the children in the past, a consideration of which must be of some relevance to a determination of future parenting arrangements. Specifically the mother suggests the father has routinely travelled outside of Australia leaving the children in the care of others.
The suggestion that the documents are “private” cannot be made out in my mind. The documents are not private. They are public records accessible by a variety of government agencies for appropriate and lawful purposes. More importantly, once proceedings are on foot between parties within the Court’s jurisdiction, there is little, if anything, that, subject to the requirement of relevance as defined by section 55 of the Evidence Act, would be private as between the parents. The Respondent has an obligation to disclose the information.
The care arrangements for the children, and thus departure from and return to the Commonwealth and thus the children being left in the care of others during those periods of time, without any criticism of the quality of care therein provided, is a matter of some significance and relevance.
As to whether the information that is sought is speculative, that is addressed perhaps through submissions put by Counsel for the father. It is conceded that the father has had periods of absence from the Commonwealth, although he asserts he has made entirely appropriate arrangements for the children’s care with his partner during those absences. However, it is the absence itself which is the subject of the wife’s contention and the subject of the documents which are sought to be produced under the subpoena.
On that basis, the subpoena could not be described as speculative or, in terminology more commonly adopted in case law, “a fishing expedition”.
To the extent that it is suggested that the mother is anxious to ascertain the husband’s work routine and to support a case for herself:
a)what would seem to be sought by the mother is to obtain records which corroborate the father’s absence from direct physical care of the children for periods of time and which may or may not be of some assistance to her in addressing contentions by her that she has been less than fully informed or consulted regarding such matters; and
b)to the extent that the mother seeks the production of documents, the contents of which may be of support to her case, that is, one would think, the fundamental purpose for the issue of a subpoena.
It is unlikely that a party would go to the trouble and expense of producing, filing and serving a subpoena for the production of documents which would not support their case or which would not go to or speak to an issue of relevance as raised within their case.
On that basis, I am satisfied the objection can, should and will be dismissed.
Appointment of an Independent Children’s Lawyer and allocation of a Child Inclusive Child Dispute Conference
As I have indicated, the balance of orders sought (with respect to the appointment of an Independent Children’s Lawyer, a Child Inclusive Child Dispute Conference and orders to facilitate the children’s communication with each parent) are ultimately made by consent.
With respect to the appointment of the Independent Children’s Lawyer and the Child Inclusive Child Dispute Conference, however, I am satisfied that there are two matters of some significance which must be commented upon, namely:
a)Each of these children is of an age whereby, and based upon a cursory examination of the parties’ evidence as to the children’s development, maturity and cognisance, they have a right under the objects and principles in section 60B and incorporating, as they now do, the entirety of the International Convention on the Rights of the Child, to have a voice in these proceedings.
b)There is controversy between the parties as to the children’s views, wishes and express desires and, accordingly, those views can and must be available to the Court.
That is best achieved, in my mind, through the use of both resources, the Child Inclusive Child Dispute Conference and the appointment of an Independent Children’s Lawyer. That is not to suggest that an Independent Children’s Lawyer is appointed simply to be a mouthpiece for the children and to relate their views and wishes to the Court.
However, having regard to the ages and apparent maturity of these children, that is an important element of the role that will be filled. The appointment of an Independent Children’s Lawyer pursuant to section 68L carries with it a number of obligations and definitions of their role as set out in section 68LA.
The Independent Children’s Lawyer is required by s.68LA(2) to form an independent view based on evidence available and to act in relation to the child’s best interests in such manner as they consider appropriate.
It is made clear in subsection (4) that the Independent Children’s Lawyer is not obliged to act in accordance with the child’s instructions. Thus the children’s views, whilst expressed, are matters of importance and part of the evidence to be taken into account by the Independent Children’s Lawyer they are not “instructions” to the Independent Children’s Lawyer.
However, the Act also imposes an obligation upon the Independent Children’s Lawyer to ensure that any views expressed by children are before the Court in appropriate and admissible form.
Section 68LA(7) does not compel the Independent Children’s Lawyer to directly disclose communications between them and any child whose interest they represent. However, the obligation to ensure that the children’s views are before the Court, consistent with the International Convention, remains.
The second issue of importance is that the involvement of both an Independent Children’s Lawyer and a Family Consultant may be of some assistance to the parties as a settlement tool and, importantly, may aid the Court’s obligations under the International Convention to ensure that the child’s voice is heard in proceedings.
The Child Inclusive Child Dispute Conference will also assist the Independent Children’s Lawyer in the discharge of their duties and obligations to ensure that there is available and admissible evidence as to the children’s views. Thus the Child Inclusive Child Dispute Conference occurring almost contemporaneous with the appointment of the Independent Children’s Lawyer will aid the Independent Children’s Lawyer in the performance of their office. Thus I am satisfied it is an entirely appropriate use of the Court’s resources.
Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 20 February 2013
(a) the reason for the urgency is significant and credible; and
(b) there is a harm that will be avoided, remedied or mitigated by hearing the application earlier.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984 , in whole or in part and modified or dispensed with, as necessary.
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