McCall and McCall

[2011] FamCA 759

FAMILY COURT OF AUSTRALIA

MCCALL & MCCALL [2011] FamCA 759

FAMILY LAW – ADJOURNMENT – Party unable to attend – matter adjourned – applicant given fourteen days to comply with Registrar’s pre-trial directions

Family Law Act 1975 (Cth)

Bankruptcy Act 1966 (Cth)

APPLICANT: Ms McCall

RESPONDENT: Ms McCall

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton

FILE NUMBER: BRC 2190 of 2008

DATE DELIVERED: 8 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 08 September 2011

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ross Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jennifer Boulton of Jennifer Boulton Solicitor

Orders

1. The Applicant, within fourteen (14) days hereof, comply in every respect with paragraphs 2, 4(a) and (b), 12, 17, 18 and 19 of Registrar Stoneham’s directions of 29 March 2011, namely:

   (a)       That the Applicant file any Amended Initiating Application (which sets out all final orders sought);

   (b)       That the Applicant file and serve the following:

   (i)One affidavit setting out her evidence in chief;

   (ii)Any affidavit setting out the evidence of any professional or lay witness that she proposes to call at the trial limited to no more than a further three (3) affidavits;

   (c)       That the Applicant file and serve a list of documents which she proposes to tender into evidence;

   (d)       That the Applicant file and serve the following Case Information:

   (i)A Minute of the Orders sought by her;

   (ii)A list of the applications and affidavits relied upon by her;

   (iii)A brief chronology of relevant events;

   (e)       That the Applicant file and serve a summary of argument.

2. That the matter be adjourned to be heard by Registrar Stoneham at 2:30pm on 30 September 2011, and in the event that the Applicant does not comply with Order 1, the matter be listed by the Registrar for an undefended hearing as soon as possible.

IT IS NOTED that publication of this judgment under the pseudonym McCall & McCall 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 BRISBANE

FILE NUMBER: BRC 2190 of 2008

Ms McCall

Applicant

And

Mr McCall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings in this matter have been on foot, as I refer to the file, since at least March 2008, when the Applicant, Ms McCall (“the Wife”), filed an application seeking property settlement and spousal maintenance orders. That was responded to by Mr McCall (“the Husband”) on 3 May 2008, whereby he sought parenting orders. Thus, this was to be the final determination of the Wife’s application for property orders and the competing proposals for parenting orders.

2. Pursuant to the case management of matters before this Court, Registrar Stoneham made a series of Orders and directions on 29 March 2011. That obliged the Applicant not only to attend for interviews upon a Family Consultant, one Ms B, which the Wife did attend, but also for the Applicant Wife to file any Amended Initiating Application by 19 April 2011, and she was also obliged to file and serve the affidavits upon which she intended to rely by no later than 24 May 2011. There are various other directions made in respect of valuations concerning the financial proceedings.

3. In the event, the Court has been advised informally this morning that the Applicant Wife has had a personal difficulty in that it is said that her father has taken ill and has been required to be conveyed to hospital this morning, and the Court has been advised that therefore the Wife will not be attending the proceedings this morning. Mr Cameron, Counsel for the Independent Children’s Lawyer, made the proposal to the Court that final Orders be made today with the view to giving the Applicant Wife either a liberty to apply or the opportunity to set aside final Orders. So far as the parenting considerations are concerned, Division 12A applies to them, and relevantly, s 69ZN of the Family Law Act 1975 (Cth) sets out the principles to which the Court must give effect. Relevantly, subsection (2) sets out five principles and the last of those includes the following:

   The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

4. Relevantly also, the third principle expresses the need to safeguard children concerned against family abuse, family violence and child neglect and the parties to the proceedings against family violence, the second principle is that the Court is to actively direct, manage and control the conduct of the principles, and the first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

5. It goes without saying that when children of the ages of the children concerned here have recently been involved in yet another interview with a Family Consultant for the purposes of a Family Report, their needs are not met when proceedings are unnecessarily protracted and not brought readily to a final conclusion. Against that background, it seems to me that the Applicant has one last opportunity to either properly formulate any application she wishes to place before the Court and any evidence she wishes to place before the Court, failing which, final Orders ought be made to bring these proceedings to a conclusion in the interests of both C, who was born in 1999, and D, who was born in 2001. For those reasons, I make the Orders set out above.

6. I should also observe that the court has been advised by the Applicant’s Trustee in Bankruptcy by facsimile dated 6 September 2011 that the Applicant, Ms McCall, who commenced the proceedings, became bankrupt when her debtor’s petition was received on 5 July 2011. Pursuant to section 60 of the Bankruptcy Act 1966 (Cth), any action commenced by a person who later becomes bankrupt is deemed to be abandoned if the Trustee does not make an election to continue it within twenty-eight (28) days of being notified of the action. The Trustee was notified of the property settlement action on the date of Ms McCall’s bankruptcy and was able to determine on the same date that it was Ms McCall who commenced the action, and as the Trustee has made no election to prosecute the action via the Trustee, the action can be deemed to have been abandoned on that date.

7. Having regard to that, it seems to me that on the further listing of this matter, consideration ought be given to dismissing the Applicant’s application for property settlement or any other financial orders.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 September 2011.

Associate:

Date: 8 September 2011