Flinders and Carmine

[2008] FamCA 884

FAMILY COURT OF AUSTRALIA

FLINDERS & CARMINE [2008] FamCA 884

FAMILY LAW – CONTRAVENTION – against mother – non-attendance by mother – issue re service of documents – warrant sought by applicant father

Family Law Act 1975 (Cth)

APPLICANT: Mr Flinders

RESPONDENT: Ms Carbine

FILE NUMBER: ADF 2864 of 2003

DATE DELIVERED: 23 July 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B.W. McQuade

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That the directions hearing listed on 31 July 2008 be vacated and brought forward to today.

2. That this matter be listed for final hearing at 10:00am on 6 August 2008 before the Honourable Justice Strickland with a time estimate of 1 hour.

3. That on or before 4:00pm on Monday 4 August 2008 the mother file and serve an affidavit of evidence in chief on which she intends to rely for the purpose of the trial.

4. That in the event of the mother failing to attend the hearing and/or failing to file any affidavit of evidence in chief the mother’s Amended Response filed on 31 May 2007 be dismissed and the hearing proceed on an undefended basis.

5. That the Application alleging Contravention filed by the father on 20 December 2007 be adjourned to 10:00am on 6 August 2008.

6. That the oral application by the father for the issue of a warrant of arrest of the mother be dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2864 of 2003

MR FLINDERS

Applicant

And

MS CARMINE

Respondent

EX TEMPORE REASONS

1. This is an Application Alleging Contravention filed by the father on 20 December 2007.  The alleged contraventions relate to the failure of the mother to comply with orders made in this Court for there to be supervised time at a Children's Contact Centre and for there to be an updated Family Report.

2. That application and a supporting affidavit were initially forwarded by post to the solicitors acting for the mother on the same date as the filing of the documents, namely 20 December.  The hearing date of the Application was 17 January 2008.

3. There must have been some indication given by the mother's solicitors to the father's solicitors that they were no longer acting, because, according to an affidavit filed by the father's solicitor on 1 April 2008, the next thing to occur was an attempt to personally serve the mother on 11 January 2008 with those same documents, and that attempt was via the mother's parents.  There was a suggestion that she may have been living with them.  That attempt to personally serve was unsuccessful, and there is a report of the process server annexed to the affidavit.  In any event, the mother's solicitor filed a Notice of Ceasing to Act on 21 January 2008.

4. On 17 January 2008 there was no appearance by the mother or any legal representative and the matter was adjourned.  The matter has been adjourned subsequently on two or three occasions and further attempts have been made to serve the mother with these proceedings.  Of course, I have mentioned already that the documents were sent to the mother's solicitor on 20 December 2007, at a time when the mother's solicitor was acting and was on file.  An argument can be mounted that that is all that is needed to establish service of these documents, but out of abundant caution, as I say, further attempts were made to serve.  There was that attempt at personal service and, subsequent to that, there have been attempts to serve by post.  Correspondence was sent to the mother at a post office box address, which appeared to be her address, and indeed that was the address identified in the Notice of Ceasing to Act filed by her solicitors.

5. Correspondence was sent by the father's solicitors to the mother at that address.  For example, on 18 March 2008 a letter was sent to that address following a hearing in this court on 13 March 2008 when the matter was further adjourned because of the need to establish service, and that letter was sent by registered post.  That letter drew the mother's attention to the Application Alleging Contravention which had been further listed for hearing on 3 April 2008.  On 26 March 2008 a confirmation card signed by the mother was received from Australia Post.  That provides clear evidence that the mother received that letter and that that was an appropriate address to serve documents on her.

6. The mother did not appear on 3 April 2008.  The registrar made an order that service of the application alleging contravention and the supporting affidavit be effected by prepaid post to the mother's last known address, and the Registrar went on and noted that such service had in fact occurred on 1 April 2008, and the registrar deemed that posting to comply with her order.  On that basis the registrar listed the Application Alleging Contravention before me today.

7. What had happened was that on 1 April 2008 the mother was sent by registered post the Application Alleging Contravention, the affidavit in support and a further affidavit, described as a trial affidavit, which was also the subject of the order made by the Registrar, and I will come back to that matter in a moment, namely, the issue of the trial.

8. With that attempt to serve - and this appears in an affidavit filed on 21 July 2008 by a paralegal at the father's solicitor's office, Mr Spaeth - is that on 28 April 2008 the father's solicitor received the letter and the documents back from Australia Post with a notification that the documents had been refused.  To my mind, that indicates that the mother refused to receive the documents, well knowing what they were.  As I say, as a result of that, the matter was listed for hearing before me today.

9. Correspondence has also been sent by the court to the postal address of the mother advising her of the hearing and, in particular, advising her of the hearing today. 

10. Just to digress for the moment, the Final Orders Applications are still proceeding in this Court and those applications have been listed to a directions hearing on 31 July 2008 with a view to fixing a hearing date, and I referred a moment ago to the trial affidavit of the father.  That was sent to the mother in that bundle of documents sent under cover of letter of 1 April 2008.

11. Today the mother has not appeared, and the father has no knowledge of her current whereabouts.

12. The subject of these proceedings is the parties’ child, and the father has not seen the child now in any meaningful way for at least 12 months.  These proceedings commenced in late 2003 and they still have not come to trial.  The father is wanting to spend time with his son.  It is apparent from documents that the father's counsel has taken me to that the mother has made every attempt to avoid this matter coming to trial and to providing any meaningful time for the father to have with his son.

13. There have been orders made for supervised time through the Children's Contact Service.  It seems that those orders were complied with initially and there is a report as to successful time spent, but the mother has now decided to put her head in the sand and simply not respond to correspondence and not make the child available for time to be spent with his father pursuant to orders of this Court, and it falls now for me to determine how this matter should be progressed.

14. I am satisfied that the mother has been served with the Application Alleging Contravention and the supporting affidavit.  As I said, the father could have rested on the basis of the documents being initially sent to the mother's solicitor, but I am satisfied that the mother has received correspondence referring to those proceedings and the listing of the same for hearing.  Although the further attempts to serve her, both personally and by post, have not been successful, I am satisfied that the mother is well aware of those proceedings, that they are being pursued by the father and, without any explanation being put before this court by the mother, all that I can make of it is, as I have said, the mother is simply not prepared to take an appropriate part in these proceedings and it is now a matter of how this case proceeds.

15. In light of the mother's failure to attend today the father's solicitor seeks an order for the issue of a warrant for the mother's arrest.  In my view, that is a course which is open to me.  As I say, I am satisfied that the mother is aware of the application and of the hearings that have been listed and she has deliberately avoided complying and attending at the hearings to date and, similarly, today.

16. However, I do not consider that it would be appropriate in the circumstances of this case to issue a warrant of arrest.  I do not consider that that will achieve the result which would be in the best interests of the child.  If I were to issue a warrant of arrest, the mother would be brought to this Court and the Application Alleging Contravention would proceed.  Even if the father were successful in that, all that does is provide a punishment for the mother for failing to comply with the orders of this Court if that was the finding that was made.  It does not at that point result in the father having any time with the child.

17. It may be that that course of action will bring home to the mother the seriousness of the matter and how she simply cannot snub her nose at this Court and orders made by it, but, as I say, in my view that will not achieve what the father wants to achieve at the end of the day, which is to have an order which is complied with, providing for his child to spend time with him.

18. Prima facie, the reports and affidavits that the father's solicitor has taken me to indicate that there would seem to be no impediment to the father having time with his child.  However, as is readily conceded by the father's solicitor at this point in time, with the father not having seen the child for a considerable period of time, the first step in re‑establishing a relationship would be supervised time at a Children's Contact Service.  That, of course, was the subject of the order which has led to the application alleging contravention.

19. It seems to me that a better course for the father to adopt, and which I propose to now put in place, is for the Final Orders Applications to be listed for hearing, and if the mother does not attend and does not file documents, then that hearing will proceed undefended.  I cannot guarantee or predict what the orders might be but, all things being equal, on what I know of this matter to date, a likely order would be a graduated process of reintroduction of the child to the father, starting with supervised time.

20. The father rightly says through his counsel, "Well, that's all very well, but given the history of this matter and the failure of the mother to comply with orders, the odds are that she wouldn't comply with such an order."  That may be so.  However, it seems to me that the remedies that would then be available to the father would be more productive in achieving his ultimate goal than issuing a warrant of arrest to get the mother to this Court now in relation to the Application Alleging Contravention.  Namely, and for example, a recovery order could be issued and also, I presume - the first step - a location order to find out where the mother is.  There is a precedent for orders to be made such that the child is brought to, for example, a supervised session at a contact service so that the child can then spend some time with the father.

21. I appreciate the father's frustration at the history of this matter.  I have been taken to it carefully by his counsel and I can understand his reasons for wanting to pursue an arrest warrant, but, to repeat, I do not consider that that will necessarily achieve the father's ultimate purpose and, more importantly, I do not consider that that is in the best interests of the child, because prima facie what is being put to me is that it is in the best interests of this child to, as soon as possible, do whatever can be done to re‑establish a relationship between the father and son.

22. I propose to make orders for the expeditious listing of this matter on a final orders basis and, obviously, the mother will be given notice of that hearing.  I mentioned in the course of submissions that it may be necessary for the father to file an affidavit, but that does not seem to be necessary because there is a trial affidavit which has been prepared, and the father is really ready to go in terms of having this matter listed for hearing.  It is the mother who has dragged the chain, and I can say that she would have to come up with a pretty good excuse to get any sympathy from this Court in terms of any delay or the like, but obviously if the mother responds appropriately to a listing of the matter for trial then that has, frankly, achieved the purpose that the father is seeking to achieve by issuing a warrant of arrest, without the drama and the hassle and problems that that creates.  By that I mean, if the mother is arrested, what happens to the child?  Whereas, with a recovery order, there are safety nets that can be put in place if that is the extent that the father would need to go to to achieve his ultimate purpose.

23. I am not proposing to dismiss the Application Alleging Contravention.  That can stay alive and if, of course, the way that I propose to direct this matter does not bear fruit, then there is still that Application Alleging Contravention alive and it can be dealt with and the father can renew his application for a warrant of arrest, if that is necessary.

24. In final submissions to me and in support of the application for the arrest warrant, Mr McQuade took me to several documents.  He took me to an affidavit of the father's filed on 19 January 2006, in particular paragraph 13 of that affidavit, which provided a chronology of events, and it is apparent from that chronology that the mother has done everything she can to avoid this matter getting to trial.  Mr McQuade took me to a report from Relationships Australia annexed to an affidavit of Ms M filed on 23 January 2007, which reported on previous occasions of supervised time, and Mr McQuade highlighted that there appeared to be a good relationship between the child and his father.

25. Those matters were put in support of the issue of an arrest warrant.  However, I do not see how they support the issue of an arrest warrant.  They support getting this matter on and getting appropriate orders so that the father can have time with his child, thus I add that to my reasons for refusing the application for the issue of an arrest warrant at this time.

I certify that the preceding 25 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 23 July 2008.

Associate