Carlton and MacDougall (No 2)

[2015] FamCA 700

FAMILY COURT OF AUSTRALIA

CARLTON & MACDOUGALL (NO 2) [2015] FamCA 700

FAMILY LAW – PRACTICE AND PROCEDURE – Mother’s oral application for an adjournment in circumstances where she is incarcerated and awaiting the trial of her criminal proceedings – Where the mother has consistently failed to comply with orders and directions of the Court for the filing of material – Where it is in the best interests of the child for the matter to be brought to a conclusion as soon as possible – Application dismissed.

APPLICANT: Mr Carlton

RESPONDENT: Ms MacDougall

INDEPENDENT CHILDREN’S LAWYER: Ms Lyrene Wiid

FILE NUMBER: BRC 9488 of 2012

DATE DELIVERED: 24 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 24 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kissick

SOLICITOR FOR THE APPLICANT: Forest Glen Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Lyrene Wiid Lawyers & Migration Agent

Orders

IT IS ORDERED THAT:

1. The Mother’s oral application for an adjournment of the trial of these proceedings be dismissed.

2. The Independent Children’s Lawyer to liaise with the C Correctional Centre to ensure that the Mother receives as soon as possible the minutes of orders sought by the Father and the Independent Children’s Lawyer respectively revised as outlined in those parties’ final submissions at the conclusion of the trial.

3. Paragraph 1(b) of the Orders of 14 August 2015 be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlton & MacDougall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9488 of 2012

Mr Carlton  

Applicant

And

Ms MacDougall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concerning a child born in 2006, who is thus now eight years and approximately 10 months of age, have been on foot since the father instituted them by the filing of an Initiating Application on 22 October 2012. 

2. The proceedings have been on foot for almost three years.  The proceedings were initially instituted in the Federal Circuit Court, where a number of orders were made prior to an order being made in that Court on 15 July 2013 for the proceedings to be transferred to this Court.  Since the proceedings have been in this Court, there have been numerous directions and orders made to ready the matter for a trial. 

3. It is clear on the reading of the material that the mother has failed to comply on numerous occasions and in numerous respects with directions and orders made by the Court for the filing of material so that the matter could proceed to a trial.  For example, trial directions were made on each of 22 May 2014, 4 September 2014 and 24 November 2014, none of which have been complied with by the mother.  The current trial to commence today was set down at a callover as long ago now as 3 February 2015. 

4. The mother is currently incarcerated in the C Correctional Centre, but is present today by order of the Court requesting her presence for the purpose of these proceedings. 

5. The mother applies for an adjournment of the trial, she says, for “a couple of months”, in circumstances where her current incarceration appears to be as a result of a number of charges including, stealing; breaking and entering; deprivation of liberty; use of a weapon; and assault in company with another person. 

6. The mother informs the Court from the bar table that she has had what is known as a hand-up committal proceeding last week, and the trial of her criminal charges is to take place in the District Court, but she is unable to inform the Court or give any information as to when that might occur.  The mother suggests she has made an application for bail and will pursue an application for bail at some time in the future after today.  She has, she says, other charges in terms of driving a motor vehicle without a licence and refers to there being some proceeding in a court today with respect to that offence, but was unable to inform the Court much about that proceeding. 

7. The mother, it seems to me, has had ample opportunity going back a very long time in terms of filing material to be in a position to have a trial of the proceedings.  As noted, the mother has not complied in those respects.  Before the Court are a number of family reports, each of which make reference to the feature that the mother had not provided material for the Court, and indeed, the family report writer took that up with the mother from time to time over the course of those reports.  The mother then expressed intentions to file material, but that has not eventuated. 

8. In the end result, the Court’s primary focus and the paramount consideration is the best interests of the child the subject of these proceedings.  The proceedings, as already noted, have long been on foot and it is plainly in the child’s interests that they be brought to a conclusion as soon as possible. 

9. The uncertainties surrounding the mother in terms of her stability of circumstances and the like has long been present on the evidence in the family reports, and there is nothing the mother provides by way of any firm reason to think that her circumstances are likely to stabilise any time soon.  It is unknown when she will have the trial of her criminal proceedings, and it is unknown whether her confident prediction that she will be successful in defending her criminal proceedings is well placed or not. 

10. In all these circumstances, it seems to me that the proceedings ought be determined sooner rather than later in the best interests of the child the subject of them, and for these reasons I do not accede to the mother’s application for an adjournment of these proceedings.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 August 2015.

Associate:

Date:  25 August 2015