CARLTON & MCDOUGALL

[2015] FamCA 636

FAMILY COURT OF AUSTRALIA

CARLTON & MCDOUGALL [2015] FamCA 636

FAMILY LAW – CHILDREN – Interim – Where in most respects the mother has not complied with any of the trial directions made – Where information has been obtained through media reporting that indicates the mother was arrested some weeks ago and remains incarcerated – Leave granted for the father and ICL to amend the orders sought in the final parenting proceedings – Leave granted for the father and/or the ICL to proceed to have the matter heard and determined on an undefended basis on the first day of trial in the event that the mother chooses to not participate in the proceedings or continues her non-compliance with orders of the Court – Orders and Reasons to be served on the mother to give notice that the matter may proceed on an undefended basis if she does not participate.

APPLICANT: Mr Carlton

RESPONDENT: Ms McDougall

INDEPENDENT CHILDREN’S LAWYER: Ms Lyrene Wiid

FILE NUMBER: BRC 9488 of 2012

DATE DELIVERED: 3 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 3 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr McKenzie as agent for Forest Glen Lawyers

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr McKenzie as agent for Lyrene Wiid Lawyer & Migration Agent

Orders

IT IS ORDERED BY CONSENT THAT:

1. On or before 4.00 pm on 7 August 2015 the Father is to file and serve an Amended Amended Initiating Application setting out amended final orders sought.

2. On or before 4.00 pm on 7 August 2015 the Independent Children’s Lawyer is to file and serve an amended Case Information document setting out amended final orders sought.

IT IS ORDERED THAT:

1. The Mother is given leave to appear via video link at the trial of these proceedings set down for two (2) days commencing at 10.00 am on 24 August 2015 at the Family Court of Australia, Brisbane Registry.

2. The Father and/or the Independent Children’s Lawyer are given leave to proceed to have the matter heard and determined on an undefended basis on 24 August 2015 in the event that the Mother chooses not to participate in the proceedings or to continue in her non-compliance with orders of the Court.

3. IT IS DIRECTED THAT a transcript of today’s hearing be obtained and provided to the Mother by way of service by the Father and the Independent Children’s Lawyer upon her.

4. IT IS DIRECTED THAT the Orders and Reasons for Judgment delivered by the Honourable Justice Kent today be provided to the Mother by the Father and the Independent Children’s Lawyer in circumstances where the Mother needs to have notice that the matter may proceed to be heard and determined on an undefended basis on 24 August 2015 if she does not participate. 

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 McDougall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern the child B, born in 2006, who is eight years of age.  The applicant to the proceedings is the child’s father, and the respondent is his mother, and the child’s interests in the proceedings are independently represented by an Independent Children's Lawyer (“ICL”) appointed for that purpose. 

2. The parenting proceedings have been on foot for a lengthy period.  In summary, a series of trial directions have been made to ready the matter for trial, and in most respects the mother has not complied, historically, with any of the trial directions that have been made.

3. For example, following trial directions for the mother to file trial material, which she did not comply with, a registrar has conducted some three compliance hearings on 4 September 2014, 24 November 2014 and 2 February 2015 respectively. 

4. On 4 September 2014 a registrar ordered the mother to file and serve a response to the final parenting orders sought by the father by no later than 18 September 2014.  The respondent mother was also to provide to the ICL by no later than 18 September 2014 the results of three drug tests which the mother asserted she had in her possession. 

5. The mother did not comply with those requirements.  That is, she did not file the material she was ordered to file, nor did she supply the drug tests to the ICL.  That is confirmed in an affidavit by the ICL filed on 7 November 2014. 

6. Again on 24 November 2014 the mother was ordered to file and serve her response to the initiating application by no later than 12 December 2014; her affidavit of evidence-in-chief for the trial; and any witness affidavits by

   
   

   19 December 2014 and a case information document including a minute of orders sought and a list of documents that she relied upon. 

7. None of those documents have been filed by the mother, and thus she has not complied, again, with directions to that effect. 

8. The mother did file a document on 22 December 2014 described as a case outline document, which did include the orders the mother sought and a list of witnesses she proposed to call, but no affidavits of any of those witnesses were then filed or have been filed since.  The mother did file an affidavit on 7 August 2014, but it is unclear whether she intends this to be her affidavit of evidence-in-chief.

9. Recent developments indicate that on 17 July 2015 the mother may have been arrested on a series of criminal charges.  The only information about that to this point is obtained by way of media reporting of the event.  It is suggested by that that the mother faces charges and that she is currently held in detention in the C Correctional Centre.  It is suggested that there will be a hand-up committal in relation to the charges the mother faces in August 2015 in circumstances where this trial is set down to occur in August 2015.

10. Mr McKenzie, who appears as town agent for both the father and the ICL today, confirms that both the father and the ICL will in circumstances of the current recent developments seek different orders in the final parenting proceedings.  They consent to an order that is, the father and the ICL consent to an order that on or before 4.00 pm this Friday 7 August 2015 that each of them file and serve, in the case of the father, an amended initiating application setting out the final orders the father seeks, and in the case of the ICL, an amended case information document setting out the amended minutes of orders the ICL would seek.

11. I also give leave in the circumstances to the father and/or the ICL to proceed to have the matter heard and determined on an undefended basis on 24 August 2015 in the event that the mother chooses not to participate in the proceedings or to continue in her non-compliance with orders of the Court.  I will direct that a transcript of today’s hearing be obtained and provided to the mother by way of service by the father and the ICL upon her, and I will direct that these Reasons for Judgment and orders be provided to the mother in circumstances where the mother needs to have notice that the matter may proceed to be heard and determined on an undefended basis on 24 August 2015 if she does not participate. 

12. I have in the course of exchanges confirmed that the usual steps will be taken to make arrangements with the C Correctional Centre to have the mother available to participate in the hearing on 24 August 2015.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 August 2015.

Associate:

Date:  3 August 2015