Geddes & Quentin (No 2)
[2024] FedCFamC1F 824
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Geddes & Quentin (No 2) [2024] FedCFamC1F 824
File number: TVC 178 of 2016 Judgment of: BRASCH J Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – PARENTING - PRACTICE AND PROCEDURE – Where anticipated wishes report not ready for an interim hearing because father failed to take the child to the Family Consultant – Where the child’s views ought be ascertained for the interim hearing and for trial – Where trial three months away - Where interim hearing adjourned to first day of trial and father again ordered to take the child to the Family Consultant Legislation: Family Law Act1975 (Cth) s 65L
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
United Nations Convention on the Rights of the Child (1989)
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 22 November 2024 Place: Brisbane (via Microsoft Teams) The Applicant: Litigant in person The First Respondent: Litigant in person The Second Respondent: No appearance Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
TVC 178 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEDDES
Applicant
AND: MR QUENTIN
First Respondent
MS B GEDDES
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Interim Hearing listed on 29 November 2024, for the Application in a Proceeding filed by the Applicant on 28 June 2024, is adjourned to 10.00 am on 3 March 2024 for interim defended hearing in the Federal Circuit and Family Court of Australia (Division 1) sitting at City J, with the Applicant and First Respondent to appear in person and Second Respondent as set out below.
2.The prisoner, MS B GEDDES born in 1991, who is the Second Respondent to these proceedings, be produced via Audio Visual Link for the interim defended hearing on 3 March 2025, as well as the trial listed for five (5) days commencing on the same date.
3.The Respondent Father is directed to comply with all directions of the Independent Children’s Lawyer for X born in 2010 (“the child”) to attend upon a family consultant for a wishes report, in compliance with Order 8 of orders made 18 September 2024.
THE COURT NOTES THAT:
A.If the Respondent Father again fails to have the child attend upon the family consultant for the purposes of preparing a report to the Court on the child’s wishes, then the trial may proceed on an undefended basis.
B.The Respondent Father and Second Respondent Mother have failed to file their response to the Application in a Proceeding, which was due on 2 October 2024, and as of now, being 22 November 2024, only the Applicant has filed an Outline of Case for the Interim Hearing.
C.The parties may wish to use the date of the Interim Hearing, being 29 November 2024 that has been vacated to inspect subpoena documents which have been returned to the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS JUDGMENT
BRASCH J:
These are my Ex Tempore reasons. I will correct the transcript for any grammatical error and to make spoken words more amendable to reading.
The Court brought this matter on today concerned that the child, X's wishes have not been ascertained for the Application in a Proceeding to be heard next week, on 29 November [2024].
When the matter was last before me in September 2024, the parties agreed it was important that I understand X's wishes. For the reasons the father has given today, he did not comply with the directions to have X's wishes ascertained. He also has not filed his Response to an Application in a Proceeding and affidavit. That was due 2 October [2024], and he has not done that. Outlines are due today and he may or may not do that.
The father's failure to comply with [filing] material is not something that is troubling me right now, today. What is troubling me is I am meant to be having an interim hearing next week, and I will not have X's up-to-date, independently identified wishes.
The trial in this matter is really not that far away. It is set down for at least five days commencing 3 March [2025]. It is imperative that I try again to have X's wishes independently relayed to me by an appropriately qualified family consultant. The Family Law Act1975 (Cth) (“The Act”) requires that I hear the voices of a child and, right now, I only have historical voices directly from X through an independent party [person].
I am conscious next week, on the date that the Application in a Proceeding is set down, I will be hamstrung to a degree at that interim hearing because I still will not have X's wishes.
I am also conscious of the overarching purpose of the Act, set out in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which requires efficient conduct of the matter. I see the efficient conduct of this matter requiring me having another go through the good offices of the Independent Children’s Lawyer (“ICL”) to try and facilitate X's independent wishes being produced to the Court so: Ms B Geddes can hear them; the father can hear them; and, the ICL can hear them.
X has rights, as the Act makes plain under the Convention on the Rights of the Child, and one of those rights is to be heard.
It troubles me the father has not complied with any of the orders, but that is secondary right now to X's best interests, which require me to have another go, as I said, through the ICL, in trying to hear his wishes before we have the trial commencing on 3 March [2025].
Background
For the purpose of these reasons, I do not consider it necessary to set out lots of background material other than to say the applicant maternal grandmother (“the applicant”; “the grandmother”) was born in 1962. The first respondent father was born in 1987, and Ms B Geddes, the second respondent mother was born in 1991.
The parties [mother and father] may have commenced cohabitation in 2008, and it seems they separated shortly before X was born. X was born in 2010.
The matter has a long history of the grandmother obtaining domestic violence orders against the mother. The father also has applied for protection orders against the mother.
The matter began in this Court on 26 February 2016 with an Initiating Application filed by the applicant maternal grandmother. On 2 March 2016, Judge Coker ordered the child live with the applicant grandmother and spend time with the father.
Many orders have been made in this matter and some of the relevant ones are:
(a)On 30 January 2017, Judge Coker ordered that the mother's time with the child be suspended until she complied with earlier orders for supervised drug testing and then her time was to commence at a supervision centre once she complied;
(b)On 1 September 2017, Judge Coker ordered the child would spend time with the father on school holidays and with the father each weekend when school recommenced. The child was to spend time with the applicant over Christmas and Boxing Day. A family report was ordered on 11 January 2018;
(c)On 29 May 2018, Judge Middleton ordered that when the child ceases to be under the care of the Department of Child Safety, the child would live with the father, and he would have sole parental responsibility. Previous orders for the applicant grandmother to spend time and communicate with the child were discharged. The applicant was restrained from removing the child from the father's care and various other restraints. Another Family Report was ordered. That - and it seems common ground - is the last time that X has seen the applicant maternal grandmother;
(d)On 29 April 2020, (lots of other orders came in between), Baumann J noted that the consultant psychiatrist, Dr C, was to assess the grandmother, and she objected;
(e)On 11 February 2021, Baumann J again noted that the applicant would not undertake the psychiatric assessment but would review her position, understandably, after her criminal proceedings were completed;
(f)On 9 March 2022, a Family Report was ordered. That, in summary, noted the child continued to live with the father and has not spent time or communicated with the applicant grandmother since May 2018, and that the mother has sporadic communication with the child;
(g)On 15 June 2022, it was ordered for the father to file and serve an affidavit setting out police charges he was currently charged with in the local Magistrates' Court;
(h)On 26 February 2024, so this year, it was ordered that the [grand]mother and X meet at a s 65L meeting. It was scheduled with the applicant, the child and a Child Court Expert, but the applicant, for the reasons set out in her material, decided not to attend and, accordingly, that meeting [Order] was vacated;
(i)On 4 June [2024], Baumann J ordered the respondent father to file an affidavit by 2 July 2024 in compliance with Order 3 of those orders and set out whether he would consent to the orders that were listed at Annexure A of Baumann J’s reasons. The respondent father did not file anything, but the applicant subsequently objected to those orders in any event;
(j)On 22 July 2024, Baumann J again ordered the father to file a Response and affidavit to the Application in a Proceeding that should be heard next week, but nothing has been received yet.
The matter was first before me in City J on 18 September 2024. I set the matter down for a five-day trial commencing on 3 March [2025] and some trial directions were made.
The Application in a Proceeding filed 28 June [2024] was listed for hearing next week on 29 November 2024, and an Order was made for the second respondent to be produced by video from jail.
Critically for today's purposes, Legal Aid was requested to fund a wishes report to be prepared, and it was requested that wishes report be produced before the interim hearing which is scheduled for next week.
I brought the matter on for mention today on short notice because of my concerns that there was no wishes report and therefore questioning the utility of the Application in a Proceeding being heard next week, as opposed to a couple of months’ time. As I said, on 3 March next year, the parties will have a trial.
Balancing all the matters I need to balance and mindful, again, of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, I am going to make these orders.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 2 December 2024
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