Dacey & Gladstone
[2021] FedCFamC2F 413
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dacey & Gladstone [2021] FedCFamC2F 413
File number(s): TVC 1568 of 2020 Judgment of: JUDGE BOWREY Date of judgment: 17 November 2021 Catchwords: FAMILY LAW – Parenting – where the Mother has failed to prosecute the proceeding with due diligence – where the Father has failed to defend the proceeding with due diligence – proceedings dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of AustraliaAct 2021
Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 10 November 2021 Place: Townsville Solicitor for the Applicant: Ruhl Family Law Centre Respondent: There being no appearance by or on behalf of the Respondent Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers ORDERS
TVC 1568 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DACEY
Applicant
AND: MR GLADSTONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The proceeding TVC1568/2020 be dismissed.
2.The proceedings be removed from the Active Pending Cases List.
3.The Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dacey & Gladstone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE BOWREY
This parenting matter came before the Court on Wednesday 10 November 2021.
The Applicant Mother is Ms Dacey. She commenced these proceedings by the filing of an Initiating Application (Family Law) on 29 October 2020.
The Mother has been represented by Ruhl Family Law.
The Respondent Father is Mr Gladstone. He has never filed a Response or any other documents.
Ms Falcomer was appointed as the Independent Children’s Lawyer for the child X born in 2007.
DOCUMENTS
The Mother filed the following documents:
(a)Initiating Application (Family Law) filed 29 October 2020
(b)Mother's Affidavit filed the same day
(c)Notice of risk filed the same day
(d)An Affidavit of Service filed by Ruhl Family Law on 2 December 2020. The Affidavit says that the Respondent Father was served personally on 9 November 2020.
(e)Mother's Amended Initiating Application filed 23 April 2021
A summary of the orders sought by the Mother in her Amended Initiating Application filed 23 April 2021 is:
(a)the child X born in 2007 live with the Father.
(b)the child spend specified times including school holidays with the Mother.
(c)communication between the Mother and child at all times as agreed and otherwise as specified.
(d)Authorities for each parent to be provided with medical and educational information for the child.
Despite the Father being served with the Mother’s documents on 9 November 2020, he did not file any Response documents.
ORDERS
The following Court Orders were made:
(a)A Consent Order made on the first return date which was 7 December 2020. The Father appeared. The Consent Order provides that the child live with the Father and spends agreed and/or specified time with the Mother. The Order further provided that the child be independently represented and that there be a Family Report.
(b)Order dated 4 May 2021. The Mother attended Court and the Father did not. The Order vacated the trial dates which had been set in December 2020, discharged some of the 7 December 2020 Orders including the trial directions and that there be a Family Report and provided that there be a Child Inclusive Conference as it was then called, on a date to be fixed.
(c)Order dated 9 September 2021. The Order discharged the requirement for a Child Inclusive Conference, listed the matter for mention on 10 November and noted that a Notice of Discontinuance may be filed by the Applicant Mother.
The reference to the Notice of Discontinuance above is that Ms Aitken of Ruhl Family Law advised the Court that the Mother was considering not proceeding with her Application for parenting orders.
The ICL Ms Falcomer did not object on 9 September to the matter being adjourned for mention on 10 November and with the possibility that the proceedings be discontinued.
When the matter came before the Court on a 10 November, Ms Aitken appeared for the Mother but without instructions. Again, there was no appearance on behalf of the Father. The ICL Ms Falcomer appeared.
Ms Aitken advised the Court that she had tried on nine occasions since 9 September to contact the Mother. She had not been able to contact the Mother. Messages were not returned.
Ms Aitken said that as far as she was aware, the child X who is now 14 ½, may not have spent time with the Mother for over 5 years.
Ms Falcomer advised the Court that:
(a)as noted on the court file, the Father has never participated in the proceedings
(b)the subpoenaed material indicates that the child is at school in Town B
(c)it appears that the Paternal Grandmother has considerable involvement with the child
(d)her correspondence to the Father has not been answered
Ms Aitken advised the Court that in the circumstances of her having no instructions and being unlikely to obtain instructions, she could not say whether the proceedings would be able to continue.
I raised with Ms Aitken that on 9 September she indicated that the Mother may discontinue the proceedings. While Ms Aitken acknowledged this, she said that she did not receive instructions from the Mother to discontinue the proceedings.
Ms Falcomer advised that she would support the proceedings being discontinued or dismissed. Both parents seem to be taking no interest in the proceedings.
Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, proceedings in the Court may be discontinued pursuant to Rule 10.02 by filing a Notice of Discontinuance in accordance with the approved form. This has not been done.
Part 10.6 of the Rules refer to default. In particular, Rule 10.26(1)(e) says that an Applicant is in default if the Applicant fails to prosecute the proceeding with due diligence. This is the case for the Mother.
Rule 10.26(2) says that a Respondent is in default if the Respondent fails to:
(a)give an Address for Service before the time for the Respondent to give an address has expired.
(b)file a response before the time for the Respondent to file a response has expired.
(d) file and serve a document required under these rules.
(g) defend the proceeding with due diligence
I have omitted some of the sub-rules above which are not relevant to this case.
Rule 10.27(1)(a) provides that if an Applicant is in default, the Court may order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the Applicant.
Rule 10.27(2)(b) says that if a Respondent is in default, the Court may give judgement or make any other order against the respondent
In addition to Rules 10.26 and 10.27, Rule 1.33(2)(a) says that if a party to a proceeding does not comply with these Rules, Family law regulations or a procedural order, the Court may dismiss all or part of the proceeding
The above is consistent with rule 1.04. Sub-rule (1) provides that the overarching purpose of these rules as provided by section 67 of the Federal Circuit and Family Court of AustraliaAct 2021, is to facilitate the just resolution of disputes according to law and is quickly, inexpensively and efficiently as possible. Sub-rule (2) of Rule 1.04 says that parties to family law proceedings must conduct the proceeding in a way that is consistent with the overarching purpose.
The Applicant Mother not remaining in contact with her lawyer and not giving instructions, has not conducted the proceedings as is required by the overarching purpose and she has not complied with and/or is in default of, Rules 10.26, 10.27 and 1.33.
The Respondent Father is in a worse position. Despite being served with the Mother’s documents one year ago, he has done nothing except appear on the first return date. He has filed no documents.
It is important that a busy Court such as this is able to devote as much time and attention to each file as that file requires. Litigants who do not prosecute their case promptly or do not even respond to a case against them, cause delays in the court. This is unfair to litigants who comply with the rules and give their lawyers instructions about the matters relevant to their case.
Taking into account the action or lack of action of the Mother and Father in this case and taking into account the requirements of the Act and Rules, the Court makes the orders as pronounced.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bowrey. Associate:
Dated: 18 November 2021
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