Currie and Wilkins

[2018] FamCA 279

FAMILY COURT OF AUSTRALIA

CURRIE & WILKINS [2018] FamCA 279

FAMILY LAW – PROCEDURAL ORDERS – where matter had been listed in March for directions but husband not available or did not attend – where the proceedings were adjourned but he again did not attend – where on the morning of the hearing, the husband seeks to be heard by telephone – where because of the history and large volume of material, that was not appropriate – matter set down for trial.

Family Law Act 1975 (Cth)

APPLICANT: Ms Currie

RESPONDENT: Mr Wilkins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 44 of 2013

DATE DELIVERED: 20 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. That the directions hearing proceed in the absence of the father.

2. That the reasons this day be transcribed and be made available to the parties and be placed on the court file.

3. That the mother’s costs and those of the Independent Children’s Lawyer of this day are reserved to the trial.

4. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 11 September 2018 subject to any part heard case as a three day case.

5. The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

1. By 4 pm on 31 May 2018 the applicant file and serve upon all other parties:

   a.an amended application setting out with precision the orders to be sought; and

   b.all affidavits of evidence to be relied upon.

2. The applicant pay all required court fees by 4 pm on 31 May 2018.

3. By 4 pm on 29 June 2018 the respondent file and serve upon all other parties:

   a.an amended response setting out with precision the orders to be sought; and

   b.all affidavits of evidence to be relied upon

4. By 4 pm on 13 July 2018 the applicant file and serve any affidavit in reply.

5. By 4 pm on 3 September 2018 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

6. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

SUBPOENAE

1. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

2. By 4 pm on 7 September 2018 all parties file electronically to …  a case outline in one document setting out:

   (a)      the outline of the issues in dispute;

   (b)      the list of the affidavits to be read;

   (c)      a concise set of orders to be sought;

   (d)      the list of objections to evidence requiring a ruling.

   AND THE PARTIES SHOULD NOTE:

   A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

   B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 44 of 2013

Ms Currie

Applicant

And

Mr Wilkins

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter is listed before me today for directions.  It was previously listed on 1 March 2018 and on that occasion adjourned until today.  I gave reasons which were published indicating why it was adjourned.  I have been handed, this morning, a trail of email correspondence which seems to have been prompted by the independent children’s lawyer writing to the father reminding him that the matter was listed for hearing and advising him of what was going to be required today.

2. The father responded to the Independent Children’s Lawyer and quite inappropriately has copied in the Court.  It is inappropriate to involve a judge or judges’ chambers in their personal correspondence.  The father’s correspondence says that he will be asking the Court to make orders so that his children can have a meaningful relationship with him and his family and I quote:

   One that can be restored from the deprivation at every instance in the past nine years by their mother and assisted by the rotten legal aid system that has permitted what amounts to nothing less than child abuse.

3. In respect of the second question as to how the case was to be conducted, and specifically by reference to division 12A of the Family Law Act 1975 (Cth) (“the Act”), he says:

   I will rely on every affidavit produced by the mother that demonstrate a complete lack of the facilitation of the children’s relationship with me and my family.  I will rely on every contravention I have filed. 

4. He may desire to do that but that can only arise in cross-examination of the mother.  To the extent that he desires to go down that path, he will need to contemplate the relevance of each of those affidavits.  He then says:

   I will be relying on every affidavit produced by expert witnesses and further calling the appointed expert to have be - that have been assigned to my family’s case for the past nine years.  I will be seeking their opinion on the above.

5. I have made, and intend now to make, orders that provide for him to call whatever witnesses he considers, but he will need to establish the relevance of that evidence. 

6. The final point of his email correspondence was that he intended to appear by telephone today.  He then said that his brother would attend to ensure that he was able to attend by telephone and then he says:

   If nobody calls me I will rely on this email as further abuse.  I was not provided an opportunity to provide unavailable dates. 

7. I gave him an opportunity on 1 March to attend today and he was also contacted by the Independent Children’s Lawyer.  The address to which the order of the Court was sent seems to me to be consistent with the order - with the document provided by his former solicitors;  they provided that address.  If he has not received his mail, there is little more that the Court can do for him.  His email which was copied into my associate this morning and, as I have said, inappropriately, was that he was making an application to appear at the hearing this morning by telephone. 

8. The Court’s rules have clear provisions for people to attend electronically and the Court does its best to facilitate those arrangements but in circumstances where I wanted him to point to various documents and explain the nature of the orders and the duration of the potential hearing, trying to do that by telephone, in these circumstances, is not appropriate.  When he was advised that it was not appropriate to make the request at that late hour, he responded by indicating that from his perspective this was just another indication of abuse.

9. I am a bit perplexed by exactly what he means but in my view he has had ample opportunity to participate in the hearing and (specifically by reference to division 12A of the Act) to assist in defining the issues for determination. One of the dilemmas in this case, and why the case should be heard now, is that in August 2017, on what I presume was a contravention application, Macmillan J, subsequent to hearing the contravention application, suspended the father’s time with the children.

10. These four children are two sets of twins, now aged 14 and 16.  At paragraphs 107 to 111 of her Honour’s reasons as to why the orders for time between the father and the children was suspended her Honour said:

    [107]The process is even more truncated in this case in circumstances where the father left the Court before the hearing of his various applications for contravention had been completed and before the Court could deal with the mother’s application to suspend the final orders. That being said, most of the evidence in this case was tested and as previously referred to, much of the evidence was in letters, emails and texts passing between the father and the mother, the mother’s solicitor and the Independent Children’s Lawyer and was not in dispute. 

    [108]I have already referred in some detail earlier in these reasons to the father’s lack of insight with respect to the needs of the children and his inability to prioritise their needs. Nothing highlights that lack of insight more than the fact that it was his case that the mother should be incarcerated for contravening the orders and his Response to the mother’s Application in a Case, in which he sought interim orders that the children live with him and only spend time with the mother after she is able to convince the Court that she understands the importance of the children’s relationship with the father. This is in circumstances where the mother has always been the children’s primary carer. 

    [109]The reports prepared by [Ms F] upon which both parties and the Independent Children’s Lawyer relied confirm both the mother and the children’s concerns about the father’s behaviour and the tenuous nature of the children’s relationship with him. I am satisfied based upon the evidence before me that the father’s behaviour to the mother and the children has not improved and that the relationship between him and the children has deteriorated further since the children were last seen by [Ms F].

    [110]I am also satisfied that in these circumstances, it would not be in the children’s best interests for the orders to remain in force which entitle the father to attend at the children’s school at the commencement of their time with him. I have little confidence, given the way in which the father conducted himself in Court, that he would be able to contain his behaviour if he were to attend at the children’s school and the children refused to go with him.

    [111]In my view, the children’s relationship with the father will not be assisted nor is it in their best interests in circumstances where they are living with the mother for the father to be in a position to insist upon the mother’s compliance with the orders, even if it were assumed it would be possible for her to make the children do what they do not want to do. I am satisfied that it is not in their best interests for the mother to face further applications for contravention in the event that they do not spend time with the father. Nor in my view should the mother be required to put up with the abusive emails and texts sent to her by the father, behaviour which I am satisfied constitutes family violence as defined in s 4AB of the Act.

    The message was sent by the Court as to the nature of what the father had to do to establish the sort of things that a trial judge would need to enable the continuation of a relationship.  It seems that the best part of seven or eight months has gone by and nothing has been done.

11. I note there was no appeal against the interim orders made by her Honour and there has been no recent application to bring the contact orders back into line again.  On that basis, one can only presume that the issue of the absence of the children from his life has not been a major priority.  I might prove to be wrong in relation to that when I see whatever evidence he does produce but the best example of what the Court is grappling here is that last response that was filed by the father was in August 2016.  He there does not set out what final orders he wants although I can interpret from his document that he wants a replication of the interim orders. 

12. The interim orders he proposes do not seem to resolve the problem of contact on a permanent basis in any event.  It is for that reason that I propose to make an order that will give him an opportunity with ample time to set out exactly what orders he wants on a final basis. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 April 2018.

Associate: 

Date:  1 May 2018