Heyden & Lester

[2021] FedCFamC2F 447

Federal Circuit and Family Court of Australia

(DIVISION 2)

Heyden & Lester [2021] FedCFamC2F 447

File number(s):	MLC 14204 of 2020
Judgment of:	JUDGE HARLAND
Date of judgment:	24 November 2021
Catchwords:	FAMILY LAW – Parenting – father has made multiple attempts to serve mother personally and by post – mother is on notice of proceedings and has been avoiding service – mother has failed to attend court on 4 occasions – arrest warrant to issue from chambers if mother fails to comply with orders.
Legislation:	Family Law Act 1975, ss.11F, 62G Federal Circuit and Family Court (Family Law) Rules 2021, r.5.09
Division:	Division 2 Family Law
Number of paragraphs:	14
Date of hearing:	24 November 2021
Counsel for the Applicant:	Mr Kelly
Solicitor for the Applicant:	RM Commercial & Family Lawyers
Counsel for the Respondent:	No Appearance

ORDERS

MLC 14204 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HEYDEN

Applicant

AND:

MS LESTER

Respondent

order made by:	JUDGE HARLAND
DATE OF ORDER:	24 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The proceeding is adjourned for Mention on 2 March 2022 at 9:30AM.

2.All parties are to note and comply with Central Practice Direction – Family Law Case Management paragraph 5.1-5.20 at

3.Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the child X born in 2017 are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the “Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the date and times below, or as otherwise directed by the Court Child Expert.

4.Part 1 of the event will occur by video, using Microsoft Teams, on 22 February 2022, with:

(a)The applicant to attend at 9AM; and

(b)The respondent to attend at 10:30AM.

Microsoft Teams links will be provided to the parties prior by the Court Child Expert prior to the event.

5.Part 2 of the event will occur in person at the Melbourne Registry at the Commonwealth Law Courts, 305 William Street. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.

6.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to section 62G(3A), unless otherwise determined by the Court Child Expert that section 62G(3B) applies.

7.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.

8.Not later than 4PM on 22 January 2022 the parties must provide their contact telephone numbers and email addresses to [email protected]

9.Pursuant to order 3 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:

(a)Any agreement reached between the parties;

(b)Identification of key issues requiring resolution

(c)Any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views

(d)The impact of the issues/dispute before the Court on the child

(e)Any other matters that the Court Child Expert considers important to the welfare or best interests of the child.

10.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers

11.The Court Child Expert will be at liberty to inspect any material filed by the parties, and otherwise any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent as well as any documents produced by the Department of Families, Fairness and Housing in relation to the matter.

12.The Child Dispute Conference originally listed to take place on 30 November 2021 be vacated.

13.Not later than 4PM on 6 December 2021, the Respondent file and serve:

(a)Notice of Address of Service

(b)Response to initiating application setting out with precision the final orders sought

(c)Notice of Child Abuse, Family Violence or Risk;

(d)Supporting Affidavit;

(e)Supporting affidavit in relation to the interim application, noting the provisions of Rule 5.09 of the Federal Circuit and Family Court (Family Law) Rules 2021.

14.In the event the Respondent has not complied with order 13 herein, the Court will cause Chambers to issue a warrant for her arrest.

AND THE COURT DIRECTS THAT:

15.Registry post a copy of the orders of today and reasons to the Respondent at the address of C Street, Suburb D VICTORIA.

AND THE COURT NOTES THAT:

A.During the course of giving oral reasons, the Affidavit of Service now filed on 24 November 2021 was provided to Chambers by way of email.

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 a pseudonym Heyden & Lester has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE HARLAND

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. X was born in 2017. He has not seen his father since 17 June 2018. The father commenced these proceedings late last year. Part of the delay in the proceedings has been due to COVID-19 and lockdowns in Melbourne, but it is also apparent that the mother and her family have been avoiding service. In his affidavit accompanying his initiating application filed on 22 December 2020, the father admits that he has spent time in gaol, and in his notice of child abuse, family violence or risk, outlines the convictions that he has received, which relate to drug offences. He says he has turned his life around since then, and has made numerous attempts to contact the mother to resume his relationship with X. He says that prior to the cessation of time, he had a good relationship with him, and he says he wants to be able to offer X his input as his father.

3. There have been several return dates in this matter, and several affidavits of service filed, and as indicated, part of the difficulty with the progress of this matter has been due to COVID-19, which, of course, is beyond the father’s control.

4. The first affidavit of service was sworn on 20 January 2021, which is an affidavit of attempted service on a property in Queensland. I note the father said in his initiating affidavit that he understood that the mother had moved to Queensland. The affidavit is not by the process server who attempted to serve the documents, but by their employer, who says that he had reason to terminate the process server’s employment, and that the process server, therefore, would not cooperate with providing an affidavit. In the affidavit referred to a copy of the process server’s notes, where she says that she attended the property and served her personally. The difficulty is that she does not give any indication as to how she identified the mother, and I am not satisfied that that occasion of service in Queensland was effective.

5. The affidavit of service that was filed on 26 March 2021 by the process server, Mr E, refers to attending property at C Street, Suburb D, Victoria, on 23 February 2021.  Mr E noted that nobody was home, but he knocked on the next door, and spoke to a male who said that the Lester family lived at that address, but gave no other information. Mr E returned on 24 February 2021 and spoke to a male who identified himself as Mr F, the respondent mother’s father, and said he did not know when his daughter would be home. Mr E told him that he had family law documents, and left his card, and requested that the respondent mother contact him urgently.

6. The process server again attended on 27 February 2021, and spoke to Mr F, again, who told him that he needed to stop, and said, “This needs to stop, now, and you are not to come here again. I will be stopping this,” and closed the door. The process server believed that the mother was at home, avoiding service. The matter was then before Registrar G on 29 March 2021. She made orders with respect to service by post to the C Street, Suburb D property, and noted that a warrant may issue if the respondent failed to attend the next date, and adjourned the matter for directions. A further affidavit of service was filed on 19 May 2021, which stated that the respondent was served by post on 29 March 2021, and on 13 May 2021, the applicant’s lawyers sent a letter to the respondent mother enclosing copies of the emails from the Court outlining the process for attending the hearings electronically, and also annexing an Express Post envelope showing that the letters were delivered.

7. The letters by the applicant’s solicitor, dated 30 March 2021 and 11 May 2021, are very clear in their terms in explaining to the mother the Court date, and the importance of participating, and recommending that she obtain independent legal advice. When the matter came before Registrar G again on 24 May, the application was adjourned to 13 July, with a further order for the documents to be served via registered post. On 13 July 2021, Registrar H ordered that the parties attend a s11F conference on 30 July 2021, made orders for the respondent mother to file documents by 3 August 2021, noting the warrant may issue, and noting that the mother was required to attend in person.

8. It appears that there was an error in the orders with the recording of the next return date, and there was also a period where Melbourne went into lockdown again, and it was not possible to have in-person hearings taking place at the Court. The applicant filed a further affidavit of service by a process server who attended the home on 10 August 2021, and whilst no one was at home, he thought that the garden looked like it had been recently watered, and he annexed a photo of the envelope that he left in a prominent position on the front porch. The applicant’s lawyer filed a further affidavit on 19 October 2021, which refers to the previous difficulties with service that also provides updated information, which includes his receipt of one of the envelopes that he sent, marked “return to sender”, and the other, being another envelope that he sent that had been opened, and that had a handwritten letter on top of the documents. And that letter said as follows:

   Please read, you don’t know who your [sic] dealing with. This is only a small list of things [Mr Heyden], the drug-dealing low-life thief, thug, lying coward, and drug addict, has done to my family.

9. It is clear from that that the respondent is well aware of the father’s attempt to have her engage in Court proceedings. In the father’s first initiating application, he only sought modest final orders. He filed an amended initiating application on 7 June 2021 seeking final orders that provide for a graduated increase in time for him to spend with X, and also interim orders that included, as a notation, a proposal that the paternal grandmother provide an undertaking to the Court to supervise his time. The application in a case that the father filed on 29 March 2021 was an application seeking to dispense with service or, in the alternative, for the documents to be served by way of substituted service by posting the documents to the C Street, Suburb D address.

10. The frustration for the father is that there is really little more he could do to seek to have the mother participate in the proceedings. In a case like this where the father has not seen the child for some time, and where the father outlines his history, it is not possible to simply make orders on an undefended basis providing for him to spend time with the child, as the Court must be satisfied that those orders are in the child’s best interests. It may well be that the mother will file documents that raise other risk issues, and raise issues as to why she says the father should not have any time, or that time should be limited and supervised.

11. What the mother needs to understand is that the father is entitled to bring Court proceedings, and has done, it seems, in a proper manner. He is the father of the child, and he has standing to bring the application. The appropriate course is not to simply bury her head in the sand and hope that the matter will simply go away, but to engage in the proceedings, and that can be done in a manner that is safe and that allows her to put her case. This would allow for the Court to then be in a position to assess what is in X’s best interests, and what orders should be made on an interim and final basis. I am aware that there have been previous notations as to the possibility of a warrant issuing for the mother’s arrest if she failed to comply with orders.

12. I am advised that the orders that I made in chambers on 20 October 2021 have been complied with, but the process server has not yet provided the affidavit of service. In my view, this is a matter where it needs to be brought to a head, rather than adjourned with the hopes that the mother will attend on the next occasion. The mother was called outside the Court when this matter was listed this morning; there was no appearance, and there has been no appearance since. There has also been no documents filed by her. The registrar listed the matter for a s11F conference on 30 November 2021. That is little over a week away. I am concerned that that resource will not be able to be effectively used, even if the mother was able to be brought to Court before then.

    ORDERS DELIVERED

13. This is very much a last resort, but the mother will leave the Court with no choice if she does not engage in these proceedings. I am satisfied that she had been given the opportunities to engage, and that this will put her very clearly on notice as to what is required of her.

    ORDERS DELIVERED

14. And the usual practice is that when a warrant is issued and the Court is notified that the party has been brought into Court, the Court will notify the respondent’s lawyers. It may mean this will occur at short notice, but that is the reality of those types of arrangements.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.

Associate:

Dated:       24 November 2021