Hurst and Lindsay (No. 3)

[2013] FamCA 689

FAMILY COURT OF AUSTRALIA

HURST & LINDSAY (NO. 3) [2013] FamCA 689

FAMILY LAW – CHILDREN – Adjournment of application seeking to proceed on an undefended basis – Father has possession of the child but failed to attend family report – Order for father to produce child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hurst

RESPONDENT: Mr Lindsay

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Webb

FILE NUMBER: MLC 5070 of 2009

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sansom

SOLICITOR FOR THE APPLICANT: Peninsula Law

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Webb, Danielle Webb Lawyer

Orders

1. That the application in a case filed 27 May 2013 is adjourned to 10.00am on 6 June 2013.

2. That the father bring to the childcare centre of the Family Court of Australia Melbourne Registry the child D born … June 2007 by no later than 9.30am on 6 June 2013 and leave the child there until further order.

3. That if the father fails to attend on 6 June 2013 as ordered, the mother have leave to seek to issue a warrant for his arrest.

4. The costs of the mother and the Independent Children’s Lawyer of this day are reserved.

5. That the reasons be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Lindsay (No. 3) 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 MELBOURNE

FILE NUMBER: MLC 5070 of 2009

Ms Hurst

Applicant

And

Mr Lindsay

Respondent

REASONS FOR JUDGMENT

1. On 6 February this year, I set down this case for final hearing in a list commencing in this month of June, to be heard not before 25 June, as a two day matter.  It is noticeable on that occasion that the father, who was the respondent of the proceedings, did not attend, although my recollection is that he had requested to be able to attend by electronic means on the basis that he lives in Western Victoria.  That application had been refused having regard to the serious nature of the proceedings.  I made further interlocutory orders for the parties to file any affidavit material to be relied upon and, importantly that pursuant to section 62G(2) of the Act, the parties and the child attend upon a family consultant for the purposes of the preparation of a family report.  That report was not to be commenced until after 3 May but to be completed and released by 7 June.  That order was made for the purposes of the applicant being able to file her material by 12 April and the respondent by 3 May. 

2. The applicant filed her material in time and no doubt it was served upon the respondent.  The respondent also filed his material on time.  He sought final orders that there be no time between the mother and the child D, (“the child”) who turns 6 in July of this year.  He filed a comprehensive affidavit, attached to which are discs and photographs and various hospital and paediatric reports.  No doubt some of that will be contentious.  That affidavit was prepared by a lawyer from Victoria Legal Aid in the Town G district.  Subsequent to it being prepared, a notice of ceasing to act was filed. 

3. Importantly, the respondent did not comply with the order to attend the family consultant.  As such, there is no material before the court about the nature of the relationship between the mother and the child.  This is a controversial case which has been through the court system on a number of occasions.  I understand that there are proceedings in other courts, involving both parties. 

4. By an application in a case filed 27 May, the mother seeks a specific order that the father be ordered to, again, attend upon the family consultant, failing which, she have leave to proceed on an undefended basis.  That may ultimately be the only way the matter can proceed but at this stage, the court will be bereft of information about the nature of the relationship between mother and child, let alone the nature of the relationship between the father and the child. 

5. The father’s affidavit does not make it clear why some attempts should not be made to create a relationship but no doubt that evidence will be expanded upon at trial.  I do not propose to make another order that the father attend for the purposes of the family report, having regard to the fact that I have already made that order.  The clock is now ticking and it may very well be that is too late to prepare a comprehensive report but at least we will find out what the problem is. 

6. I propose, therefore, to adjourn the matter to Thursday of this week at 10 o’clock in the morning for the further hearing of the application in the case filed 27 May.  If the father fails to attend at that hearing, then the mother can either elect to proceed at trial on an undefended basis, in which case the father will be excluded from the proceedings or, alternatively, having regard to his failure to comply with the orders in relation to the family report, the mother can seek to issue a warrant for his arrest.  One way or the other, it is important that we find out what is happening. 

7. I propose to specifically order that the child be brought to the court at 9.30 on this coming Thursday morning so that, if there is a prospect, we can find out whether the family consultant can do what needs to be done. 

8. I propose to reserve the costs of the party this day and to have the reasons transcribed.  To the extent that it is necessary for me to say so, I do not accept that the father cannot attend the court.  There are ample opportunities for him to obtain assistance from various organisations and, no doubt, he will explain his conduct.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 June 2013.

Associate: 

Date:  21 June 2013