Maeda and Beaulieu (No.2)

[2019] FCCA 3806

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAEDA & BEAULIEU (No.2) [2019] FCCA 3806

Catchwords:
FAMILY LAW – Application in a case – where an urgent application has been filed – where service copies had not been collected by the applicant – where there has been no appearance by either party – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR MAEDA

Respondent: MS BEAULIEU

File Number: ADC 4412 of 2018

Judgment of: Judge Young

Hearing date: 24 December 2019

Date of Last Submission: 24 December 2019

Delivered at: Darwin

Delivered on: 24 December 2019

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: No appearance

Counsel for the Respondent: No appearance

Solicitors for the Respondent: No appearance

Counsel for the Independent Children’s Lawyer: No appearance

Solicitors for the Independent Children’s Lawyer: No appearance

UPON NOTING

A.That chambers was informed by Registry that service copies of the application in a case had not been collected by the solicitor for the applicant from their court box;

B.That there was no appearance by either party today.

ORDERS

1. That the Application in a Case filed by the father on 20 December 2019 be dismissed.

2. That the matter remains listed for mention on 25 February 2020 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Maeda & Beaulieu (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 4412 of 2018

MR MAEDA

Applicant

And

MS BEAULIEU

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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. This is an urgent application by the father of a child who is six years old. On 11 December a family report was released which disclosed that the child had complained to the family consultant that, if I can summarise, the mother had engaged in unnecessary or excessive corporal punishment of the child and, in particular, that he was often smacked and sometimes smacked around the head or the face.  I think the face was the actual complaint. There are also some concerns about the mother’s mental health raised in the report.

3. I had indicated to the parties when releasing the family report that I would consider any urgent applications. On Friday, 20 December 2019, afternoon, in fact, quite late Friday afternoon, my chambers received a letter, that was actually dated the previous day, asking for an urgent listing.

4. I note that the application was signed by the Registrar on 20 December, that is, the Friday, and presumably that’s when the matter was brought to the attention of the court in Adelaide who sent it to my chambers in Darwin, where it was received Friday afternoon.  I was unavailable to consider it on Friday afternoon but I considered the matter immediately I arrived in the office on Monday morning and I gave it a listing for today at 10.30 a.m. Darwin time or 11.30 a.m. Adelaide time. 

5. I have been informed by the court staff that the sealed application with the return date, that is, today, was placed in the court box of the relevant solicitor, Phillips Green & Associates, yesterday and has not been collected.  It follows from that that the application has not been served either.  My chambers emailed Phillips Green yesterday to advise that the application was listed today and, I presume, emphasising the need for urgent service. There has no reply to my chambers to those emails. 

6. In all the circumstances there is probably very little I can do. I have been informed that the Family Report writer indicated that she had made a mandatory report to the child welfare authorities about the child’s disclosures.

7. In all the circumstances, as I say, where there have been credible claims made by a six year old child of excessive corporal punishment by his mother; where those claims have been reported to the South Australian child welfare authorities; where the solicitor has inexplicably failed to appear today; and where it is apparent that the respondent mother has not been served with the application there is probably nothing whatsoever I can do at the moment. 

8. The court will close for the Christmas break this afternoon.  The matter is already listed on 25 February.  There is, of course, no reason why there cannot be another urgent application made before then if the father is advised that that is appropriate. 

9. I propose to dismiss the application in a case today but, of course, there is no reason why a further application cannot be made.  I also propose to order a transcript, and I propose to have a copy of today’s transcript provided to the parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  10 January 2020