Ellgar and Okeil (No. 2)

[2009] FamCA 557

FAMILY COURT OF AUSTRALIA

ELLGAR & OKEIIL (NO. 2) [2009] FamCA 557

FAMILY LAW – CHILDREN – continuation trial – no appearance by the mother – child remains living with mother contrary to previous orders – interim order left in place

Family Law Act 1975 (Cth)

APPLICANT: Mr Ellgar

RESPONDENT: Ms Okeil

INDEPENDENT CHILDREN’S LAWYER: Karen Tydeman

FILE NUMBER: ADF 1399 of 2006

DATE DELIVERED: 1 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 1 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Ross

SOLICITOR FOR THE APPLICANT: Bartel & Hall

SOLICITOR FOR THE RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr K Tredrea

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. That the Further Amended Application for Final Orders filed by the father on 29 April 2009 be listed for an undefended hearing at 12:00pm on 20 May 2009 with a time estimate of one hour.

2. That the time for the father to file and serve the affidavit of evidence in chief of his current partner be extended to 4:00pm on 15 May 2009.

3. That the question of the father’s costs of and incidental of today’s hearing be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Ellgar & Okeil is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1399 of 2006

MR ELLGAR

Applicant

And

MS OKEIL

Respondent

EX TEMPORE REASONS

1. This is a continuing trial before me.  It was last before me on 13 March 2009, when it was adjourned to today, and I made orders for the filing of documents including trial affidavits.  Importantly, also, I made an order for an updated family assessment report from Dr C, psychologist. 

2. At that time - namely, 13 March 2009- the mother was represented by Ms Milen.  At that time also there were issues relating particularly to the child R. She had recently gone to live with her mother under concerning circumstances and that was the catalyst, or one of the catalysts, for seeking an updated report from Dr C, he having been in this case for some time and having provided at least one report previously. 

3. Today there is no appearance by the mother.  Her solicitor, Ms Milen, filed a notice of ceasing to act on 21 April 2009.  Since then there has been no address for service filed by the mother.  We know that the mother is still in South Australia and still living at S outside of Adelaide but the mother, it seems, has chosen to ignore this hearing.

4. It is in fact worse than that in terms of the mother's attitude to this case because today I have received the further report of Dr C.  That tells me that the mother did not attend the appointment made for her and the children, R and M, for the purpose of Dr C preparing his updated report.  The father attended as arranged with the two youngest children, T and C, but, as I say, the mother did not attend.

5. The mother gave no excuse and no explanation, as I understand it.  And that is the same today.  The mother was well aware of today's hearing from her solicitor, and I will just check this.  In the notice of ceasing to act today's date was identified as the next time this matter was listed before the court and that is a notice which was sent to the mother.  Thus I have no doubt that the mother was fully aware of today's hearing.

6. The situation with the children is that T and C remain living with the father.  The child R remains living with the mother.  The child M though, may no longer be living with the mother.  She of course is not a child the subject of these proceedings.

7. The father lives in southern Adelaide with T and C. T and C attend Y Primary School.  R was attending that school prior to her moving to live with her mother.  Apparently she has attended that school off and on since, and for example, she attended on a couple of days this week.

8. I note what the children T and C have told Dr C about their knowledge of R and what is happening with her, her change of attitude and the like, which is all very concerning in terms of whether she is receiving adequate care from the mother.  Indeed, prima facie, she is not.

9. The father has not taken any contravention proceedings, but that is a matter for him and I do not make any comment about that.  For the moment, R remains living with the mother despite the orders of this Court.

10. The father has complied with the orders that I made, save and except that he has not filed an affidavit of evidence-in-chief of his current partner.  I am concerned about why that is but I will come back to that.

11. In relation to R, her position creates a dilemma, given the mother not attending upon Dr C nor attending today.  There are interim orders in relation to the three children which provide for the children to live with their father and there are interim orders providing for time to be spent with the mother.

12. With R, I have explored with counsel for the independent children's lawyer and the father's counsel what orders can realistically be made about her.  Without detailing the submissions and my comments, in the end result I determined that the only realistic position I can take with R is to simply leave the interim order in place and not make any final order dealing with where she lives or the time she may spend with the other parent.

13. I readily concede that that is not a satisfactory result but it is a result forced upon me by the attitude of the mother in choosing not to take part in these proceedings or involve R in an assessment by Dr C.

14. Where that leads I frankly do not know.  It may be that R comes around and returns to her father.  It may be that her father does take contravention proceedings.  That is going to be up to him.  For the moment, as I say, I intend to leave that interim order in place.

15. With the other two children, it was urged upon me initially today to make final orders that they live with the father and that they spend time with the mother as agreed.  I can say that on the evidence that is before me and that I have read that result is a result which would appear to me to be in the best interests of these two children. 

16. That said, as recently as 13 March 2009 the mother appeared with her solicitor and wanted to pursue her response.  The choice then in relation to these two children is to simply make an order without any extensive reasons today, or to set the matter down for an undefended hearing on the basis of dismissing the mother's response and proceeding, on an undefended basis on the father's amended application which he has now filed. 

17. I will not repeat the submissions of counsel nor my remarks, but at the end of the day that is what I propose to do in this case; namely, dismiss the mother's response and set the matter down for an undefended hearing.

18. I will obviously request the court to advise the mother of the order that I make today about that and indicate to her that if she wishes to do anything in relation to final orders she will need to either file an appropriate application and/or attend on the hearing date that I fix for the undefended hearing.  That will be a matter for the mother and I cannot predict, obviously, what she will do or what information might be available to me on that adjourned date from her.

19. I will need the father to file the affidavit of his partner and I will need counsel - either the independent children's lawyer or the father's counsel - to prepare the usual documents that I need to be before me, but particularly and specifically a chronology which would assist me in finalising the matter on that day as best I can.

20. I am looking to make final orders if I can, in relation to all three children.  I have indicated that at the moment I cannot see myself making a final order in relation to R, but the passage of time to that hearing might change that.  I do not know.  Certainly I will be dealing on a final basis with T and C on that day.

21. Counsel have now reminded me that I previously dismissed the mother's response and removed it from the active pending cases list.  In fact I have confirmed that, and I made that order on 23 December 2008.  That was when I listed the matter for an undefended hearing on 13 March 2009, which is the last day the matter was before me, and I have already referred in these reasons to what happened on that day.

22. That does not change my view that I need to set up, now, another undefended hearing, but I can indicate for the transcript that I would take a very dim view of the mother attending on the date I now set and saying, "Oh, well, let's get this back on track," because she has already had that opportunity.

23. As I say, if the mother does appear I need to hear what she has to say and make a ruling at the time on what is before me.

24. I request the registry manager to forward a letter to the mother advising her of the orders made today and that if she wishes to take any part in these proceedings she will need to file an appropriate application and attend at the hearing on 20 May 2009.

I certify that the preceding 24 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 1 May 2009.

Associate