Director-General, Department of Community Services and Kilah (No. 2)

[2007] FamCA 862

FAMILY COURT OF AUSTRALIA

DIRECTOR –GENERAL, DEPARTMENT OF COMMUNITY SERVICES & KILAH (NO. 2) [2007] FamCA 862

CHILD ABDUCTION - Hague Convention - Practice & Procedure

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Director General, Department of Community Services

RESPONDENT: Ms Kilah

FILE NUMBER: SYC 1848 of 2007

DATE DELIVERED: 24 July 2007

PLACE DELIVERED: Wollongong

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 24 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE RESPONDENT: Mr Holmes

Orders

1. The hearing date of 28 September 2007 be vacated.

2. The matter be listed for hearing in the Family Court in Sydney on 17 August 2007.

3. A transcript be taken out of the hearing before Justice Le Poer Trench this afternoon.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Le Poer Trench delivered this day will for all publication and reporting purposes be referred to as Director-General, Department of Community Services & Kilah

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1848 of 2007

Director-General, Department of Community Services 

Applicant Central Authority

And

Ms Kilah

Respondent Mother

REASONS FOR JUDGMENT

1. The matter was listed today at my request following my receiving a direction from the Deputy Chief Justice that the matter should be listed earlier than the allocated date of 28 September 2007.

2. As case management judge I was aware that the matter had been listed for hearing before Justice Steele on 6 July 2007.  I was not made aware of what happened with that hearing until just recently and I was not therefore aware that a date at the end of September had been allocated by the Court Services Manager.

3. I have now read a copy of a judgment delivered by Justice Steele on 6 July 2007 and can see that the matter did not proceed because the respondent had not filed the appropriate response as had been directed by a Judicial Registrar when the matter was being prepared for the hearing on 6 July 2007.  It is clear that His Honour was not in a position to proceed on that day because he was unsure of the grounds for opposing the return of the child as sought in the application before the Court.

4. It is a clear policy of the Court that cases under the Family Law (Child Abduction Convention) Regulations 1986 are dealt with expeditiously and the amount of time this case has been in the Court system is already outside the time the Court would normally like to have the case completed.

5. During the hearing before me I had material which indicated that the applicant was in a position to proceed with the hearing on 14 to 17 August 2007.  I received submissions from the respondent which included a submission that the respondent’s counsel was not available for the whole of August 2007.  It was further submitted that the date allocated for 28 September 2007 was a date which suited all the parties.  Mr Holmes for the respondent further submitted that when the date was fixed there was no indication from the Court that the case needed to be heard in a tighter time frame.  Mr Holmes further submitted that his client was ready to proceed with the hearing listed for 6 July this year notwithstanding the filing of the wrong response form.  The filing of the wrong form was referred to by Justice Steele in his judgement of 6 July 2007.  Mr Holmes claimed that each counsel had written submissions and each was ready to meet the other’s case on that day.  The matter was adjourned not because of any application made by either party but rather at the motion of the Court.  In the circumstances he submitted that his client should be allowed to retain the hearing date allocated as that date was available to her counsel of choice.  He said his client had spent a considerable amount of time with her counsel and had confidence in him.

6. There were other very serious allegations made by Mr Holmes which touched on alleged manipulation by the applicant to avoid the Judge who had been allocated to hear the case on 28 September 2007.  I did not really understand the allegation and consequently do not deal with it here.

7. I have considerable sympathy for the position the respondent finds herself in now.  She personally has done nothing which caused the hearing to be vacated on 6 July 2007 and it must be said that the Court differently constituted would in all probability have taken a different pathway on 6 July 2007 which would have seen the case determined on that day.  Nonetheless the fact remains that proceedings under the Regulations by their very nature need to be determined expeditiously and accordingly the convenience of counsel must give way to the broader concerns relating inter alia to the welfare of the subject child.

8. I propose to allocate the hearing on 17 August 2007 and conclude that a balance of fairness and expedition is met by allocation of that date as the respondent will have 18 working days to instruct and prepare another counsel to appear on her behalf.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  24 July 2007