Department of Family and Community Services and Hampton & Anor ; Hampton and Heath & Anor

[2015] FamCA 914

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & HAMPTON AND ANOR ; HAMPTON & HEATH AND ANOR [2015] FamCA 914

FAMILY LAW – PRACTICE AND PROCEDURE – Application to vacate the hearing dates – Non-compliance with trial directions and pending criminal proceedings – where long-standing proceedings and hearing due to commence imminently – Application dismissed.

Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570

APPLICANT: Department of Family and Community Services

FIRST RESPONDENT: Ms Hampton

SECOND RESPONDENT: Mr Dale

FILE NUMBER: PAC 4622 of 2014

AND

APPLICANT: Ms Hampton

RESPONDENT: Mr Heath

INTERVENOR: Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Mahony as agent for Mr Tiyce

FILE NUMBER: NCC 815 of 2012

DATE DELIVERED: 14 October 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 October 2015

REPRESENTATION

SOLICITOR FOR THE MOTHER: Sharon Payne Family Lawyers

SOLICITOR FOR THE FATHER MR 

HEATH:

Adams & Associates

SOLICITOR FOR THE FATHER MR DALE Gonzales & Co

COUNSEL FOR THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Mr Morley

SOLICITOR FOR THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Crown Solicitor’s Office

Orders

(1)  The Application in the Case of 8 October 2015 of Mr Dale to vacate the hearing is dismissed.

(2)  The matter will remain listed for hearing to commence on Monday 26 October 2015 at 10:00am.

(3)  Mr Heath is to file an affidavit setting out the details of the matters with which he has been charged and, in particular, the progress of any court proceedings within seven days.

(4)  Access is granted to the parties to the documents produced on subpoena by M Organisation.

(5)  The time for compliance for subpoenas to the Department of Corrective Services and Ms B is extended to Tuesday 20 October 2015 at 9:30am.

Notations:

(6)  In the event that either or both of the current carers for the children wish to be joined as parties to the proceedings, they should file such an application forthwith and it should not be assumed that any filing of such application will also cause a further successful application for the trial dates to be vacated.  This decision today for the matters to remain listed for trial is made without prejudice to any future application prior to the trial date.

(7)  In the event that the Independent Children’s Lawyer wishes the Registrar to make application to the Registrars of any other court for court records, that should be done as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Hampton and Anor; Hampton and Heath & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

File No. (P)PAC4622/2014

BETWEEN

Department of Family and Community Services  (Applicant)

AND

Ms Hampton  (Respondent)

AND

Mr Dale  (Second Respondent)

File No. (P)NCC815/2012

BETWEEN

Ms Hamptopn  (Applicant)

AND

Mr Health  (Respondent)

AND

Department of Family and Community Services   (Intervenor)

REASONS FOR JUDGMENT

1. This is an application made by the second respondent in rather complicated parenting proceedings that relate to four children.  The children in question are eight, seven, three and almost two, and the proceedings have been on foot since July 2012, that is, virtually the whole life of one of the children and the entirety of the life of the other youngest child.  The matters involve a number of complex issues for each of the parents and an expert report has been provided and updated on two further occasions.

2. The proceedings have been for their entirety quite fluid, with the circumstances of each of the parents changing and significant matters which do potentially affect and have affected their parenting capacity arising as a result of those events.  The Department of Family and Community Services have intervened in the proceedings and the children have been under the parental responsibility of the Secretary since September 2014.

3. The matter was listed for trial in November last year but was vacated.  The matter was again listed for trial many months ago to commence the week after next and this is a recently-filed application to vacate.  Each of the fathers, including Mr Dale, the second respondent father, has been non-compliant with the orders made in relation to the preparation for trial.

4. The position in relation to proposed orders is unknown so far as both of the fathers are concerned. Although the mother has complied in the sense that she has filed an affidavit, there is a significant area of contention in relation to charges faced by Mr Dale in respect of which she is a critical witness and as I understand it, her evidence does not touch upon that matter. 

5. The Independent Children’s Lawyer has only recently become aware that, in fact, both of the fathers currently face criminal charges and there is no recent information at all filed by Mr Heath, who now supports Mr Dale’s application to vacate the trial.

6. All of the parties support the application to vacate but, certainly, the Department and the Independent Children’s Lawyer supports it somewhat less enthusiastically than the others in the sense that both are conscious that the circumstances for these children have remained in limbo for so many years and that their circumstances, that is, the children’s circumstances, have not changed in the last year since they have been in care.  There are concerns expressed by counsel on behalf of the Independent Children’s Lawyer that in the event that this matter is vacated as sought, the Court may, effectively, be in exactly the same position in another six months when it is likely that further trial dates will be obtained.

7. The representative for the Department of Family and Community Services’ main objection relates to the possibility of the current carers of the children becoming parties to the proceedings themselves, which, in my view, is an important consideration. This has also been a live issue for all of this year and there seems no reason that the proceedings should be vacated for further discussions to be had between the Department and a potential party when they have always been in a position to join the proceedings.

8. I am concerned for the potential for the proceedings to be re-opened in the event that they are not vacated. However in my view, it is not necessarily a given that the parties will be able to re-open the proceedings under Rice & Asplund[1] because the relevant change of circumstances is the children’s circumstances. In this case the matters which found the application to vacate are issues that must have been known to Mr Dale and the mother for some time and there is no explanation for how the criminal proceedings came to be listed at a time after the hearing or why action was not taken to vacate this hearing at an earlier date so that earlier trial dates could have been given. So far as Mr Heath is concerned, there is no explanation put before the Court about why he has not complied with the directions for preparing the matter for trial.  The issue of certainty for the children, the unknown position of the parents in six months’ time and the fact that the fathers could have applied to vacate the date at an earlier stage or provide further information to the Court leave me to conclude that it is not in the best interests of these children for the hearing to be vacated and the matter will remain in the list.

   [1] (1979) FLC 90-725; (1978) 6 Fam LR 570.

9. Whether or not it proceeds undefended will depend entirely on whether any efforts are made by the respective parties to comply with trial directions even at a very late stage.  It may be that leave is given to rely upon affidavits filed out of date but, of course, if the affidavits are not filed at all, then the matters must proceed undefended.

10. I make a specific direction with respect to Mr Heath that he is to file an affidavit setting out the details of the matters with which he has been charged and, in particular, the progress of any court proceedings within seven days.  I make no further directions at this stage but I make a notation that in the event that either or both of the current carers for the children wish to be joined as parties to the proceedings, they should file such an application forthwith and it should not be assumed that any filing of such application will also cause a further successful application for the trial dates to be vacated.  This decision today for the matters to remain is made without prejudice to any future application prior to the trial date.  So the application in the case of Mr Dale to vacate the hearing is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 October 2015.

Legal Associate: 

Date:  21 October 2015