Ebrahim & Lamsaard
[2023] FedCFamC1F 28
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ebrahim & Lamsaard [2023] FedCFamC1F 28
File number: PAC 3622 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 31 January 2023 Catchwords: FAMILY LAW – PARENTING – Where the applicant mother filed an application to set aside final parenting orders made in 2019 – Where the mother has failed to engage in proceedings since June 2022 – Application dismissed for want of prosecution – Written submissions as to costs. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.22 Cases cited: Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 31 January 2023 Place: Sydney (via videolink) Solicitor for the Applicant: No appearance Solicitor for the Respondent: Ms Brake Solicitor for the Independent Children's Lawyer: Ms Smith ORDERS
PAC 3622 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EBRAHIM
Applicant
AND: MR LAMSAARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
31 JANUARY 2023
THE COURT ORDERS THAT:
1.This matter is dismissed for want of prosecution pursuant to r 10.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.In the event of the father wishing to make an application for costs, he is to file written submissions of no more than two (2) pages within 14 days of the date of these orders.
3.The mother shall be given an additional period of 14 days to respond to the father’s written submissions, if any, in accordance with Order (2) above.
4.The solicitors for the father are to serve a copy of these orders and any written submissions filed on the mother’s solicitors at their last known email address and on the mother at her last known email address.
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 the pseudonym Ebrahim & Lamsaard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an application brought by Ms Ebrahim (“the mother”) seeking to set aside final parenting orders that were made on 6 December 2019 by Henderson J. Those orders provided for the mother and Mr Lamsaard (“the father”) to have equal shared parental responsibility for A (“the child”) who, in the event that the mother continued to reside in City S, would live with the father in Australia and spend time with the mother.
The mother’s application, filed on 5 July 2021, seeks interim orders for the child to live with the mother and for the mother to be permitted to take the child overseas, with regular electronic communication with the father. As a final order, the mother seeks leave to “amend her Final Orders upon the provision of a Family Report or as the Court directs”.
In her affidavit supporting the application, the mother deposes that she currently resides and is employed full time in City S, travelling to Australia a minimum of three times a year to visit the child, although this was disrupted by the lockdowns associated with public health measures adopted in response to the COVID-19 pandemic. The mother’s application to set aside the final parenting orders of 2016 is apparently based in allegations of mental abuse perpetrated by the father against the child, as well as the father being charged with an offence and being involved in AVO proceedings concerning another ex-partner, Ms CC. Those charges have since been dismissed.
The father filed a Response on 13 July 2021 supported by an affidavit in which he seeks an injunction against the mother from removing the child from Australia and that the child be placed on the airport watch list, noting that the child’s passport is currently held by him, but has expired. In his affidavit at paragraph 23, the father disputes all allegations of perpetrating mental abuse against the child and attests to defending the criminal charges against him in Local Court, which I note have been dismissed.
The chronology of the litigation has been helpfully set out by both the father and the Independent Children’s Lawyer (“ICL”). By way of summary:
·On 30 September 2022, orders were made by a Judicial Registrar noting that the proceedings required a hearing on the Rice and Asplund (1979) FLC 90-725 issue, that is, whether there had been a sufficient change in circumstances justifying revisiting the final parenting orders. Order 3 provided that, in the event that the mother had not filed material in support of her application, the proceedings may be heard on an undefended basis. The matter was then adjourned to a compliance and readiness hearing on 30 November 2022.
·On 30 November 2022, there was no appearance by the mother. The father was directed to serve the mother with the orders at the last known electronic address provided. The matter was listed for a further compliance and readiness hearing on 14 December 2022.
·On 14 December 2022, there was no appearance by the mother. The father’s solicitor confirmed the orders of 30 November 2022 had been complied with by way of service on the mother’s solicitor on 2 December 2022 and on the mother’s email address on 6 December 2022. The matter was then stood over to today, 31 January 2023.
I note that the last involvement of the mother in these proceedings occurred by way of the ICL mentioning the appearance of the mother’s solicitor on 3 June 2022.
Rule 10.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) relevantly provides:
10.22 Dismissal for want of prosecution
(1)If a party has not taken a step in a proceeding for 6 months, the court may, on its own initiative:
(a)Dismiss all or part of the proceeding; or
(b)Order an act to be done within a fixed time, in default of which the party’s application may be dismissed.
(2) The court must not make an order under subrule (1) if:
(a)there is a future listing for the proceeding or a part of the proceeding; or
(b)an Application in a Proceeding relating to the proceeding has not been determined; or
(c)a party to the proceeding satisfies the court that the proceeding, or the part of the proceeding, should not be dismissed; or
(d)the court has not given the parties to the proceeding notice under subrule (3).
(3)The court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time it will consider whether to make the order.
(4)Notice under subrule (3) must be sent by email or by post in an envelope marked with the court’s return address:
(a)to each party’s address for service; and
(b)if a party has no address for service—to the party’s last known email address or last known postal address.
In the circumstances outlined above, I am satisfied that the mother has taken no steps in these proceedings for a period in excess of six months and I am further satisfied that she has been given at least 14 days’ notice of the potential for the proceedings to be dismissed for want of prosecution. I am satisfied that, despite being provided with that notice and opportunity to attend, the mother has not attended the proceedings listed in December 2022 or today, nor has she communicated with the ICL or solicitor for the father, who has been on record as acting for the father since the mother’s application was filed.
On that basis, having regard to the inaction by the mother in the proceedings and being satisfied that the provisions of r 10.22(2) have been complied with and that the mother has been given due and proper opportunity to reinitiate the prosecution of her proceedings but has declined to do so, I dismiss the proceedings for want of prosecution pursuant to r 10.22.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 31 January 2023
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