Cheltnam and Lane

[2012] FamCA 607

FAMILY COURT OF AUSTRALIA

CHELTNAM & LANE [2012] FamCA 607

FAMILY LAW – Where the mother has not participated in the Court process – Where final orders are made in default

Family Law Act 1975 (Cth)

APPLICANT: Mr Cheltnam

RESPONDENT: Ms Lane

INDEPENDENT CHILDREN’S LAWYER: Ms Sarah Cleeland

FILE NUMBER: BRC 11263 of 2011

DATE DELIVERED: 20 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 20 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Pearson of Pearson & Associates Solicitors

THE RESPONDENT: No appearance

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Ms Sambanis of Sarah Cleeland Family Lawyers

Orders

IT IS ORDERED THAT

1. The child, B born … November 2002, (“the child”) live with the father.

2. The father have sole parental responsibility for the child.

3. The child spend time and communicate with the mother at all times as may be agreed between the parties.

4. The father shall continue to obtain counselling for the child as recommended by the child’s counsellor Ms L from time to time and the father shall be solely responsible for the cost of same.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

4. 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.

IT IS NOTED

(a)It is acknowledge that the mother has not participated in the Court proceedings since filing material on 15 December 2011. The mother did not participate in interviews for the preparation of a Family Report despite attempts to contact the mother to request her participation in those interviews.

(b)On the father’s evidence that he is unable to get into contact with the mother.

(c)It is acknowledged that the mother may wish to spend time with the child in the future and despite these orders being made on a final basis, the father and the Independent Children's Lawyer are aware that the mother may bring a further application to spend time with the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheltnam & Lane 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 11263 of 2011

Mr Cheltnam

Applicant

And

Ms Lane

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In the matter of Cheltnam & Lane, this is the callover of the matter to be set down for a trial.  The father’s application is a parenting application with respect to the child, B, born in November 2002 (“the child”).  The application was transferred from the Federal Magistrates Court in February 2012 to this Court.

2. The child is currently living with the father and not currently spending time with the mother.  The mother was served with the application in these proceedings in January 2012, but thereafter has not appeared nor has she filed any material.  The mother has failed to participate in any interviews for the family report.

3. There is a report recommending that the child live with the father and have supervised time with the mother and time with his half sibling, not subject to these proceedings.  The mother has been well aware from the history of the proceedings throughout, of the need to file material and to attend at relevant court events, including today’s event.  She has failed to do so.

4. In those circumstances, the independent children’s lawyer joins with the father in seeking default orders for the child to live with the father, albeit acknowledging that the mother may bring an application to spend time with the child in the future.

5. In the circumstances, I am satisfied that the mother has had an adequate opportunity to attend today and she was given notice on 27 June 2012 by letter from the independent children’s lawyer, of the intention to seek orders in default of her appearance on this occasion.

6. On the undertaking of the independent children’s lawyer to file and serve an affidavit confirming forwarding the correspondence of 27 June 2012 to the respondent mother, I make the following orders.

   ORDERS DELIVERED

7. I make the following notations:

   (1)It is acknowledged that the mother has not participated in the Court proceedings since filing material on 15 December 2011.  The mother did not participate in interviews for the preparation of a family report despite attempts to contact the mother to request her participation in those interviews.  It is noted, that on the father’s evidence, that he is unable to get into contact with the mother.

   (2)It is acknowledged that the mother may wish to spend time with the child in future and despite these orders being made on a final basis, the father and the independent children’s lawyer are aware that the mother may bring a further application to spend time with the child.  The letter of 27 June 2012 to the mother, handed up, will be admitted and marked exhibit 1 for the purpose of this hearing.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 July 2012.

Associate: 

Date:  1 August 2012