Harvie & Beale
[2023] FedCFamC1F 782
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harvie & Beale [2023] FedCFamC1F 782
File number(s) MLC 9904 of 2015 Judgment of WILSON J Date of judgment 12 September 2023 Catchwords FAMILY LAW – PARENTING – mother persistently refusing to participate in proceeding after 25 August 2023 appearance – mother writing a litany of unacceptable emails to my associates – mother threatening to sue me personally unless her adjournment request was granted – mother initially consents to my deadline with the trial of this proceeding then asserts a conflict of interest emerges – mother asserts that the trial is not ready because the father is facing the Magistrates Court in weeks to come – mother fails to prosecute her application to remove the ICL – held, mother’s application for the removal of the ICL dismissed under Rule 10.27(2)(b) Legislation Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.27(2)(b) Division Division 1 First Instance Number of paragraphs 8 Date of last submission 12 September 2023 Date of hearing 12 September 2023 Place Melbourne Counsel for the applicant Ms McCreadie with Ms Dunlop Solicitor for the applicant Higgins Legal The respondent Litigant in person (Did not participate) Counsel for the Independent Children's Lawyer Ms Treyvaud Solicitor for the Independent Children's Lawyer Macgregor Barristers And Solicitors ORDERS
MLC 9904 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR HARVIE
Applicant
AND MS BEALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY
WILSON J
DATE OF ORDER
12 SEPTEMBER 2023
UPON THIS PROCEEDING coming before me for trial today AND UPON HEARING Ms McCreadie with Ms Dunlop of Counsel for the applicant, there being no appearance by or on behalf of the respondent despite her having been provided with a video link and requested at 10:24am today to appear electronically at 11:30am, she having produced no medical certificate to explain her absence and UPON ALSO HEARING Ms Treyvaud of counsel for the Independent Children’s Lawyer I ORDER as follows -
1.the respondent’s application in a proceeding dated 30 May 2023 for the removal of the Independent Children’s Lawyer is dismissed pursuant to rule 10.27(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021);
2.the case will be listed before the Honourable The Chief Justice on 14 September 2023 at 10:00am;
3.the costs of the applicant and of the Independent Children’s Lawyer this day are reserved.
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 Harvie & Beale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Today is the day fixed for the trial of this proceeding. The case has been before me on 25 August, 1 September, 8 September and today. Orders were made for the respondent to do a variety of things on 25 August referable to elaborating upon the evidence that she has already adduced in support of her application for orders for the dismissal of the Independent Children’s Lawyer.
Her evidence, if it is properly called that, in relation to her application for the removal of the Independent Children’s Lawyer is adduced in her affidavit dated 30 May 2023. Most of that affidavit contains submissions which is not in the nature of facts which the Rules require to be stated. Instead, it was hyperbole or contention, some of which was thoroughly insulting and inadmissible. In any event, the respondent failed to do what she was required to do by providing such additional affidavit material as the thought fit to improve upon her 30 May 2023 application in respect of the removal of the ICL. She failed to adduce any further evidence.
She failed to appear on 1 September. The proceeding was adjourned to 8 September. She failed to appear on 8 September despite having been given notice and directly served, as opposed to orders being simply uploaded to the Commonwealth Court’s Portal. She was told that today was the trial of the proceeding. She has failed to appear and instead produced an email at 11.23 am today indicating that she wishes to do other things preparatory to her participation in the trial. In addition, she has sent an email on 11 September, yesterday, at 5.33 pm asserting a claim of conflict of interest. She has also emailed me threatening to sue me personally unless her adjournment is granted.
She is not here to prosecute her application for the removal of the Independent Children’s Lawyer. In those circumstances, Rule 10.27(2)(b) provides that if the respondent is in default, the court may give judgment or make any other order against the respondent.
The respondent has gone to inordinate lengths to complain most vociferously of the trial proceeding today. She has engaged in a course of conduct, which I regard as inappropriate, of communicating directly with my staff, sometimes three times a day by email complaining about things that are not to her liking. Aside from the fact that the proper course to have adopted was the bringing of an application if she wished to vary orders previously made, the tenor and detail of her correspondence is improper and utterly inappropriate for a person who has, as she says, the advanced learning to occupy the status of her profession. That is the subject of her application for my recusal for bias.
Today, the husband and the Independent Children’s Lawyer have quite properly protested about the conduct of the respondent, submitting that the respondent engages in delaying tactics with a view to forestalling the day of trial. The respondent, instead of appearing and explaining matters to me in person, chooses to go to print with her last email communication sent today at 11.23. That communication indicates that she is waiting on something to happen in the Magistrates Court before she is in a position to complete her evidence, assuming she intends to reduce her evidence at some stage to the form of a trial affidavit.
When combined with her allegations of conflict, which I invited her to make and which she only made yesterday for the first time and after the close of court hours.
Having said that, I reject out of hand everything that the respondent says about conflict, recusal and bias. But in the interests of the appearance by the court of complete neutrality and disinterest, it is best for another judge to deal with this case without the suggestion of any of the criticisms that the respondent makes.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 14 September 2023
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