Geddings & Batie
[2023] FedCFamC1F 172
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Geddings & Batie [2023] FedCFamC1F 172
File number: CSC 76 of 2022 Judgment of: BAUMANN J Date of judgment: 14 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the Respondent father has failed to comply with directions and appear before the Court – further directions made for the father to file material – matter listed for undefended hearing Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 14 March 2023 Place: Brisbane Solicitor for the Applicant: Hartley Whitla Lawyers Solicitor for the Respondent: Litigant in person (did not participate) Solicitor for the Independent Children’s Lawyer: Ms Lehmann, Lehmann Featherstone ORDERS
CSC 76 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEDDINGS
Applicant
AND: MR BATIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
8 MARCH 2023
THE COURT ORDERS:
1.That the father file and serve a Response and supporting affidavit, as previously ordered, and shall do so by no later than 4.00pm on 5 April 2023.
2.That by no later than 4.00pm on 19 April 2023, the Independent Children’s Lawyer file and serve a minute of final orders she contends is in the best interests of the children, Z born 2017, Y born 2012, X born 2010 and W born 2008 (“the children”).
3.That the proceedings be listed for Undefended Hearing (in the circumstances which are set out in the Reasons delivered at the time of this Order being made) at 9.30am (AEST) on 13 June 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4.That the parties have leave to appear by telephone on 13 June 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am (AEST) on 13 June 2023; or
(b)They shall each telephone … by 9.25am (AEST) on 13 June 2023;
(c)They shall each then enter the pass code …#; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
5.That if the father fails to comply with the directions made previously in this matter both today, on 20 October 2022 and 18 January 2023, then on 13 June 2023, the Court will consider whether the orders proposed by the Independent Children’s Lawyer are in the best interests of the children and will consider making orders on a final basis.
6.That the issue of costs be reserved.
7.That this file be available to view by all parties on the Commonwealth Courts Portal.
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 Geddings & Batie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
The Court is seized with contested parenting proceedings relating to four children, W who was born 2008 and is now 14 years; X born 2010 who is now 13; Y born 2012 who is now 10 years of age; and Z born 2017, who is now approaching her sixth birthday. The parties to these proceedings are the Applicant mother, Ms Geddings, a health professional who resides in Queensland, and the Respondent is the father, Mr Batie, who the Court understands is living in New South Wales, possibly City B. The parties separated in April 2021 after a relationship of some 13 years.
For the purpose of these Reasons, it is not necessary to deal significantly with the history, other than to observe that as a result of the breakdown of the relationship and the management of this matter in the Federal Circuit Court of Australia (as it was then known) (now Division 2) arising from proceedings commenced by the mother in February 2022, a psychiatric report prepared by Dr C, filed in this Court on 13 September 2022, raised serious yet currently untested allegations against the father, who has left Queensland and now, as I say, resides in New South Wales. The allegations and opinions expressed by the Psychiatrist suggests the children and/or the mother could be at risk of harm from the actions of the father. I have made no such finding.
After the matter was transferred to this Court, I made Orders after hearing submissions from the solicitor on the record for the mother and Ms Lehmann, an experienced Independent Children’s Lawyer, about the release of the report, and it was released to the father, and I am told and accept that on or about 18 January 2023, the report was sent to the father. Although the father has been directed by the Court to file a Notice of Address for Service and by my Orders on 20 October 2022 was directed within 30 days of receiving the report to file an amended Response setting out the interim and final orders he now seeks, the father has not complied with that direction.
On 18 January 2023, I again ordered the father to file and serve a Response. He has not done so as at today. Rather than comply with directions of the Court, the father, who is unrepresented, has chosen to email my chambers directly. In his email of 14 March 2023, sent at 9.13am, he says to my Associate that a failure by the Court to respond to an email he sent on 8 March 2023 “is unprofessional but in no way unprecedented”. The father, as an unrepresented litigant, clearly fails to understand it is completely and entirely inappropriate to email or seek to directly communicate with a Judge. He says, in the email received today, which I have marked as Exhibit 1 (and contains the earlier email), that he has been unable to obtain legal advice.
He says he is in a financially difficult situation and in fact claims he is “insolvent”. This lack of solvency, he says, puts him in a position where he is unable to pay for his upcoming surgery, scheduled to take place at the D Hospital, he says, in early 2023. I note at this juncture of these Reasons that there are no proceedings pending or launched in this Court or, to the best of my knowledge, previously in Division 2, for property relief or financial relief in the form of maintenance or the like. I note the parties’ decree nisi of dissolution of marriage took effect in late 2022 and clearly, there are time limits on both parties if any financial proceedings are to be launched.
The Family Law Act 1975 (Cth) provides that proceedings for financial relief are to be launched within 12 months of decree absolute. Therefore, there is nothing I can do about the father’s pleas for financial support until he effectively files an application. My concern is that the father appears not to be engaging with the proceedings. Whilst I accept this is highly distressing for him, it is not in the best interests of the children for litigation of this nature to be prolonged unnecessarily. Whilst I can take some account of the untested statements in the email from the father, since he has no longer had legal representation, he has placed no evidence before the Court.
In the circumstances, it is my view that it is in the best interests of the children to at least consider whether the Court can make final orders in the parenting proceedings if the father does not actually do anything in respect of these proceedings – and let me make it clear that I do not expect the father to travel from New South Wales to Queensland. He can, as today was offered to him and he has not taken up, appear by electronic means. He has appeared previously on the telephone in appearances before me. But if the father does not appear, and comply with directions, on the next date of 13 June 2023, then the Court will, as the order I pronounce today makes clear, consider making final orders in respect of the parenting proceedings.
I have explained to the mother’s solicitor Ms Hartley, as is well known by her and as is well known by the Independent Children’s Lawyer, that although in parenting proceedings we talk about final orders, the Court reserves and the law enables a right for a parent to return to the Court at a later date to seek to vary the orders if a material and substantial change of circumstances has occurred since the orders were made and if, as a second limb of that test created by authorities like Rice & Asplund (1979) FLC 90-725, it can be demonstrated that it is in the best interests of the children to undergo further litigation in respect of parenting.
Sadly, the father does not appear to be spending time with the children at the moment and the psychiatric report and the previous child impact report gives some context to why that is occurring at the moment. I will cause these reasons to be published so that the father knows what he has to do. One thing he should not do is continue to email my chambers. It is not unprofessional for my chambers not to respond to him; it is unethical for him to seek to communicate with me in this way. Accordingly, I make the orders which appear at the commencement of these reasons.
The usual orders for people to appear by telephone shall be incorporated in the order. If the father fails to comply with the directions made previously in this matter, both today, on 20 October 2022 and 18 January 2023, then the Court, on 13 June 2023, will consider whether the orders proposed by the Independent Children’s Lawyer are in the best interests of the children, and consider making orders on a final basis. I will reserve the costs of the parties today.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 April 2023
0
0
0