CURRIE & WILKINS

[2018] FamCA 1139

FAMILY COURT OF AUSTRALIA

CURRIE & WILKINS [2018] FamCA 1139

FAMILY LAW – ADJOURNMENT – where the respondent advises the applicant and the court of not knowing of the hearing until immediately beforehand.  Where the court accepts that explanation is possible – where adjournment granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Currie

RESPONDENT: Mr Wilkins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 44 of 2013

DATE DELIVERED: 1 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 March 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

CHILREN’S LAWYER:

Victoria Legal Aid

Orders

1. That the extant applications of all parties are adjourned for mention at 10.00am on 20 April 2018 for the purposes of considering the matters readiness for trial.

2. That this order be sent to the father at his email address.

3. The question of the costs of the mother and the Independent Children’s Lawyer this day are reserved to the return date.

4. That the reasons this day be transcribed.

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

REASONS FOR JUDGMENT

1. By an order that I made on 7 February without notification to the parties, this case was set down for directions before me on 1 March.  According to the court file, the order was posted to the respondent at an address in Suburb K.  The Court today received copies of various emails in which the respondent says that he knows nothing about the hearing.  He was made aware of the hearing yesterday afternoon.  His email indicates a string of complaints, all of which do not affect what to do here, but it seems common ground that leaving aside any questions of natural justice, it would assist the Court if I knew exactly what orders he seeks.

2. The formal application before the Court was filed by the applicant on 27 April, and that needs, according to counsel, to be amended because it leaves open the question of time between the children and the respondent as agreed.  I read between the lines that there is not much love lost between the two parents. 

3. It seems the father has not had time with these children now for months, and that arises out of a court order.  But, his response filed on 17 August 2016, apart from disagreeing with the orders proposed by the applicant, does not set out what final orders he wants.  He refers only to the interim orders.  It is not clear whether the interim orders are also intended to be final orders.  If they were, what he is seeking is that the children live with him and that there be a variety of other orders which on any view may not be appropriate. 

4. It is sensible for the respondent to indicate his proposed orders within the parameters of the parenting powers under section 65D of the Family Law Act 1975 (Cth) (“the Act”). If he desires to maintain the interim or procedural orders he sought as his position for the final orders, it should not take very long to resolve on the basis that most of those appear beyond the power of the Court.

5. The whole purpose of the directions hearing was to enable the Court to have some understanding of what was in dispute, bearing in mind the specific provisions of Division 12A of Part VII of the Act. Thus not so much because of natural justice, but because I think the court really needs to understand what it is that it is being asked to do, an adjournment ought occur.

6. I suggested that perhaps 24 hours might be sufficient, but looking at some of the notes in the emails, the respondent refers to the fact that all this is short notice and not reasonable.  On that basis, one might conclude that if I listed this tomorrow or next week, he would similarly argue that that is not enough time.  I do not know why he is not having any time with the children at present nor why he has not altered his position since April or August 2016.  On that basis, I think the logical conclusion is to adjourn the matter to another directions hearing and the most logical day for me is 20 April at 10 am.

7. I will reserve the question of the costs of the mother and the independent children’s lawyer to the return date.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 March 2018.

Associate: 

Date:  27 March 2018