Buckwater and Perry

[2009] FamCA 273

FAMILY COURT OF AUSTRALIA

BUCKWATER & PERRY [2009] FamCA 273

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to appear by telephone – Vary and discharge existing orders – No change to existing orders

Family Law Act 1975 (Cth)

APPLICANT: MR BUCKWATER

RESPONDENT: MS PERRY

FILE NUMBER: MLC 6223 of 2008

DATE DELIVERED: 8 APRIL 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MS MORRISSEY (By Telephone)

SOLICITOR FOR THE RESPONDENT: ROBB & ASSOCIATES

Orders

IT IS ORDERED:

1. THAT the application in a case filed by the father on 17 March 2009 be dismissed.

2. THAT the orders sought by the mother in her response to the application filed 1 April 2009, as to paragraphs 1 and 3 thereof, be dismissed (but on the basis that they may be re-issued in proper circumstances upon proper material filed).

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Buckwater & Perry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6223 of 2008

MR BUCKWATER

Applicant

And

MS PERRY

Respondent

REASONS FOR JUDGMENT

1. The matter of Buckwater and Perry again returns to court.  On this occasion the father appeared in person.  Ms Morrissey, solicitor, appeared to seek leave to represent her client by telephone pursuant to a request to attend by electronic communication.

2. In the ideal circumstances parties and their legal representatives should be in court so the hearing can be conducted in a meaningful and orderly fashion.  The basis of the request was that the mother cannot obtain an extension of legal aid and currently both she and her solicitor are in the state border region where the mother resides.  I listed the matter at 11.00 a.m. this morning and organised a telephone mention on the basis of determining that request to attend by telephone for the purposes of the hearing.

3. That preliminary application was somewhat overtaken by the requests of the father and the responses of the mother's lawyer to issues before the court.  What was before the court was the father's application and a case filed 17 March 2009 seeking leave to file further interim applications.  Otherwise he sought to reinstate his ongoing facility to see or to spend time with or to talk on the telephone to his daughter and to set aside particular aspects of earlier consent orders whereby he was restrained by consent from instituting further proceedings in this court.

4. There is on file a response filed on behalf of the mother on 1 April 2009.  She seeks to dismiss the initial Form 1 application filed 29 August 2008 and given that is awaiting a defended hearing in the court pursuant to orders made by Senior Registrar FitzGibbon on 3 October 2008, I certainly do not intend to strike out, in this interim proceeding, that application.

5. The response otherwise seeks to strike out the interim application of 17 March 2009 and to obtain a further order and to impose upon the father a further restraint that without obtaining leave of the court he not commence any further proceedings.

6. I have in the context of this busy duty list read the consent orders that were negotiated before Senior Registrar FitzGibbon when the mother was represented by counsel and clearly there is expressed in unqualified and unambiguous terms an order, order 3 in the following terms:

   “That the father be restrained without first obtaining leave of the court having jurisdiction under this Act from commencing any proceedings”.

7. I do understand that order was in relation to the two boys, D and M, and excluded any order in relation to the daughter, G, and she was otherwise dealt with by the order of the Senior Registrar on that day.  I have either been taken to earlier orders or traversed orders and judgments which date from 29 November 2007 and the defended hearing before Cronin J, and in some particularity I have been referred to paragraph 15 of those orders by Ms Morrissey and the circumstances in which time spent would cease upon a breach of the orders by the father.

8. I have read the judgment of Cronin J in that regard and made reference to that during this hearing and it is clear that there were very specific and blunt words used by his Honour as to the father and his cause of action before the court and his attitude certainly to the mother.

9. Thereafter the consent orders of 3 October 2008 made by Senior Registrar FitzGibbon provide for the father to attend upon a post-separation parenting course.  That has not been completed.  He was required to produce an original certificate verifying his completion of the course and not merely attend.  As I understand from the father before he abruptly departed court today, he did attend one session in Albury, but for reasons of and related to the inability of that centre to complete the course, or a member of staff leaving, or whatever, it was not completed. 

10. The father told me he now has as of 17 June an appointment with a Melbourne-based agency to recommence his parenting course.  That may or may not occur and he may or may not attend and/or complete that course, but it is proper that he had the opportunity to attend that course.  I am satisfied that he interests of these children need the father to successfully attend and complete that parenting course.

11. There are many matters of conflict in this case.  There is a level of concern that I have as to the suspension in relation to the two boys of some ongoing time spent with arrangement.  Ms Morrissey has indicated to the court over the telephone that there are at least three occasions of breach.  The father identifies one and says he has a genuine excuse because his car broke down and the radiator needed urgent repairing and the children were returned the following day.

12. Presumably some time hereafter, preferably in the Federal Magistrates Court, should be required to hear and determine those matters.  This file is already large.  It is full of issues and excuses.  Legal aid for the mother is almost exhausted.  The father appears always in person.  With that background I needed to determine in the interests of the children and having proper regard to the father's right to put his case, whether leave be given contrary to the consent order, paragraph 3, of the orders of the Senior Registrar of 3 October 2008.

13. I conclude that the father has not in any way made out a case.  The issue of the child G is awaiting further hearing.  I see no reason whatsoever to extend any further ongoing interim hearings to the father on his limited, indeed, very, very unhelpful material filed with the court.  I record that in the affidavit of the father accompanying his application there is stapled another application seeking differing orders but that application has not been filed and there is handwritten ten orders sought therein which are not properly issued which are not before me and which I do not regard as forming part of the current application.  I propose to strike out the application of 17 March 2009. 

14. As to G and the orders made by the Senior Registrar that it be transferred to a list for hearing by a judge in the normal course of the progress of the listed cases awaiting trial I conclude that matter will need to be determined by the co-ordinating judge.  It would be helpful if the matter be dealt with some expedition. 

15. Certainly I record that the mother's solicitor has indicated that Albury is a preferred venue and I note that the defended hearing by Cronin J over three days or thereabouts in November 2007 was in Albury although the order on the face of the document does not actually record that the hearing was in Albury.  That venue is ultimately a matter which involves the transfer to the Federal Magistrates Court of the proceedings. 

16. The issues in this case really are properly within the domain of the Federal Magistrates Court and whilst I will not now transfer the file, I certainly am of the understanding that there is no particularly complex issue in this matter given the prior determinations and orders made.  However, that is not a matter that I further adjudicate upon today. 

17. I will have these brief reasons delivered without vacating the bench, and as a matter of urgency transcribed, placed upon the court file and made available to the parties. I record that I do not further investigate any order under section 118 of the Family Law Act and rely upon the consent order where the father agreed not to issue further proceedings.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: