Hescott and Beares

[2013] FamCA 316

FAMILY COURT OF AUSTRALIA

HESCOTT & BEARES [2013] FamCA 316

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal for want of prosecution

APPLICANT: Mr Hescott

RESPONDENT: Ms Beares

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4543 of 2007

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 20 October 2010
30 January 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by or on behalf of Applicant Father

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

Orders

1. That all Applications and Responses filed herein by the father are dismissed for want of prosecution.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hescott & Beares has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4543 of 2007

Mr Hescott

Applicant

And

Ms Beares

Respondent

REASONS FOR JUDGMENT

1. Mr Hescott and Ms Beares are the parents of N, (“the child”) born in April 1998 and now 14 years and 9 months of age.  The mother commenced parenting proceedings in the Local Court by way of an application filed on 27 April 2007.  She filed a Notice of Child Abuse or Family Violence on 17 August 2007, after the proceedings were transferred to the Federal Magistrates Court.

2. The mother’s Notice of Abuse referred to allegations that the child complained of sexually inappropriate behaviour on the part of the father in 2005.  Subsequent affidavit evidence set out that a JIRT investigation took place in 2005, with the allegations being found to have been substantiated.  It appears that a final apprehended violence order was made against the father for the protection of the child by consent and without admissions.  This order expired in 2007.

3. The proceedings were transferred to the Family Court of Australia on 13 March 2008 and listed for first mention on 26 March 2008.  The matter was listed before the Magellan Registrar on 27 March 2008 and then the docket Registrar on 16 April 2008.  On a number of subsequent occasions there was no appearance of or on behalf of various parties or the Independent Child’s Lawyer (“ICL”).

4. On 10 February 2009 the proceedings were placed in the Magellan list.

5. The Registrar on that date ordered a Magellan Report, which was released on 24 March 2009.  On 3 April 2009 during a mention before the Magellan Registrar all parties agreed that a Chapter 15 expert report was required but the parents refused to consent to any orders for payment of the relevant fees.  Ultimately consent orders were made on 17 September 2009 for the appointment of Associate Professor B as single expert and for the father to pay the full amount of her fees in the sum of $9,900 in the first instance.  The apportionment of that amount was reserved to the trial judge.

6. Associate Professor B prepared a report dated 14 June 2010, which was released to the parties on 5 July 2010.  Directions to prepare the matter for trial were made by the Registrar on 21 July 2010 and the proceedings were listed before me on 20, 21, 22 October 2010.

7. On 20 October 2010 the parties reached an interim agreement, to the effect that the child spend time with the father at his expense under professional supervision for a specified period.  The orders provided that Associate Professor B would thereafter prepare an updating report.

8. The Magellan Registrar conducted periodic file reviews and ascertained on 22 May 2012 that the father stopped spending time with the child in August 2011.  On the same date the father’s solicitor indicated that he could no longer afford to pay for professional supervision but that he intended to meet the cost of the updated report.

9. It appears that the father took no steps to arrange for an updated report from Associate Professor B after he stopped seeing the child in August 2011.  When no updating report had been received by 8 November 2012 the Magellan Registrar caused the proceedings to be listed before me on 14 December 2012.  The Registrar gave notice of this listing to all parties but there was no appearance on or behalf of the father on that date.  On 14 December 2012 I adjourned the proceedings to 30 January 2013, with the intention of dismissing all Applications and Responses filed by the father for want of prosecution.  It was necessary that the father receive 14 days’ notice before I could make such an order.

10. The Magellan Registrar wrote to the father at his last known address by letter dated 14 December 2012, advising him of the directions made on that day and of the possibility of dismissal of his application in the event that he failed to appear on the next occasion (exhibit 1).  The ICL wrote a letter to the father in similar terms dated 14 December 2012 (exhibit 2).  The ICL’s letter clearly invited the father to telephone her if he wished to discuss the proceedings.

11. On 30 January 2013 I was informed by the Registrar, who was present in court, that she had received no response whatsoever to her letter to the father.  Similarly the ICL informed me that she had received no response, whether written or oral, from the father to her letter.

12. The procedure for dismissal for want of prosecution is set out in Rule 11.06 which provides:

    11.06       Dismissal for want of prosecution

    (1)If a party has not taken a step in a case for one year, the court may:

    (a)dismiss all or part of the case; or

    (b)order an act to be done within a fixed time, in default of which the party’s application will be dismissed.

    (2)The court must not make an order under subrule (1) unless, at least 14 days before making the order, the court has given the parties written notice of the date and time when it will consider whether to make the order.

    (3)If:

    (a)an application is dismissed under subrule (1);

    (b)a party is ordered to pay the costs of another party; and

    (c)before the costs are paid, the party ordered to pay them starts another application on the same or substantially the same grounds;

    the other party may apply for the case to be stayed until the costs are paid.

    Note   This rule applies unless the court orders otherwise (see rule 1.12).

13. I am satisfied that the father took no steps in the case for one year prior to 30 January 2013.  As noted he stopped spending time with the child in August 2011 and thereafter took no steps at all to advance his case.

14. I am further satisfied that the father received proper notice of my intention to dismiss for want of prosecution on 30 January 2013.  His solicitor filed a Notice of Ceasing to Act on 13 December 2012 and advised the father of the listing on 14 December 2012.  Both the Magellan Registrar and the ICL advised him of the listing on 30 January 2013 and the likely consequences of failure to appear on that date.

15. In these circumstances, I am satisfied that it is appropriate to bring the proceedings to an end by the dismissal of all applications and responses filed by the father.  The interim orders of 20 October 2010, by which the child was to spend time with the father, have now expired by effluxion of time.  There thus remain in place final orders made by consent on 20 October 2010 whereby the mother has sole parental responsibility and the child lives with her.  These orders reflect the reality of the child’s situation since August 2011.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 1 February 2013.

Associate:     

Date:              1 February 2013