McDevitt & Duchamps
[2023] FedCFamC1F 1098
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McDevitt & Duchamps [2023] FedCFamC1F 1098
File number: SYC 8226 of 2023 Judgment of: REES J Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application seeking an adjournment of interim parenting proceedings – Where the mother is awaiting the outcome of an appeal to the Legal Aid Review Committee – Where no special circumstances exist that justify a refusal of the wife’s adjournment application – Where an order that the child live with the father is extended pending further order – Where the wife’s right to an adjournment arises out of the operation of s 57 of the Legal Aid Commission Act – Where the husband seeks an order for costs thrown away by the adjournment – Application for costs dismissed Legislation: Family Law Act 1975 (Cth), s 117(2A)
Legal Aid Commission Act 1979 (NSW), s 57
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 14 December 2023 Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: NLS Law Counsel for the Respondent: Mr Sansom SC Solicitor of the Respondent: ATW Family Law Pty Ltd Independent Children's Lawyer: Ms Doring ORDERS
SYC 8226 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MCDEVITT
Applicant
AND: MS DUCHAMPS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS:
1.That, pending further order, the child X born 2019 live with the father.
2.That the interim parenting proceedings are adjourned to a date to be fixed.
3.That the parties have liberty to apply to relist the matter upon the provision of evidence of the determination of the mother’s appeal to the Legal Aid Review Committee.
4.That the father’s application for costs of today’s appearance is dismissed.
5.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 McDevitt & Duchamps has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
The application before the Court is to adjourn the hearing of an interlocutory parenting application. To understand the reason, it is necessary to have some context.
Mr McDevitt (“the father”) and Ms Duchamps (“the mother”) are the separated parents of X who was born in 2019. The mother is a citizen of the United States of America (“USA”). X was born in the USA and has both Australian and US citizenship.
The parents, then living in Australia, separated for a time in 2020 and the father commenced proceedings in the Federal Circuit Court of Australia as it was then called.
On 4 May 2020, orders were made on the application of the father, there being no appearance by the mother, placing the child on the Family Law Watchlist and prohibiting the child’s removal from Australia for three years.
Shortly after those orders were made, they reconciled and resumed their relationship.
In mid-2020, X started attending preschool at Suburb B and she continued to attend there until she was removed from Australia by the mother.
On 2 September 2023, further orders were made, noting that the parents were reconciled and the applications were discontinued and, by consent the following orders were made,
4.That the Mother surrender the child’s emergency US passport issues [sic] on or about 9 May 2020 to the Registry Manager of the Family Court of Australia as soon as practicable, with said passport only to be released by the Registry Manager upon obtaining the written consent of both parties.
5.The orders of 4 May 2020 in relation to the Airport Watchlist remain in full force and effect.
The orders placing X on the Family Law Watchlist expired on 4 May 2023.
On 18 September 2023, both parents who were then living together, executed a Statutory Declaration stating, relevantly,
1.Our daughter [X], aged 4, is currently on the Family Law Watchlist, as ordered by Judge Monahan on the 4th May 2020. Under the terms of the order, [X] is prohibited from being removed from Australia for a period of 3 years from the date of the order unless there is consent between both parties (father and mother).
2.Both of us give our consent for [X] to travel to the USA with [the mother] … departing [late] 2023.
3.This consent is given pursuant to the undertaking declared on 18 September 2023 that [X] will be returned to Australia [in late] 2023.
4.This Statutory Declaration is made by both of us on the understanding that it will be used to facilitate [X’s] departure from Australia [in late] 2023, and a copy of this and the order will be provided to the Australian Federal Police at the point of departure.
The mother departed Australia with X in late 2023 and she did not return in accordance with her undertaking. The father deposed that he had not spoken with the mother after the date of departure, that she did not answer text messages and did not answer his calls.
On 31 October 2023, the mother emailed the father stating, inter alia,
[X] and I are feeling better and have been having a wonderful time with our family and support system here in the USA.
Upon reflection, I believe it is best for [X] and myself to remain here in the USA.
I would like to try and work through this with you amicably and I believe that we can find the resolve we need through mediation.
On 1 November 2023, the father filed an application seeking final orders that X live with him and interlocutory orders to be made urgently and ex parte, requiring the mother to return X to Australia and to his care. On the same day, the father travelled to the USA.
Soon after, the father instituted proceedings in the USA and an order was made in those proceedings granting an Ex Parte Emergency Custody Order “temporarily granting [the father] custody of [X] pending a full hearing of this matter”. A warrant issued to facilitate the execution of that order. The matter was adjourned until the next day.
The father, with the assistance of police, located and collected X.
The father and the mother both appeared in court the following day. The mother was ordered to give X’s Australian and USA passports to the father. The mother requested an adjournment and the matter was stood over for three days.
On the following day, the father and X left the USA and returned to Australia.
On 8 November 2023, a senior registrar of this court ordered, inter alia, that X live with the father pending the adjourned date of the application; restrained each of the parents from removing X from the Commonwealth of Australia and placed X on the Family Law Watchlist. Orders were made for the mother to file a response and affidavit evidence.
The mother did not comply with the orders in relation to filing and her material was filed the day before the hearing.
In an affidavit sworn 13 December 2023, the mother makes allegations of family violence. The father has not had an opportunity to address those allegations because of the late service of the material but I accept that he denies them.
The Independent Children’s Lawyer (“ICL”) has issued a subpoena to the police but that subpoena is not returnable until 21 December 2023. On behalf of the wife, it is submitted that the material which will be produced by the police is anticipated to corroborate her allegations that the husband committed acts of violence towards her and towards other women.
At the commencement of the hearing Senior Counsel, appearing pro bono for the mother, sought an adjournment of this application until the police had answered the subpoena. In the course of submissions, it emerged that the mother had applied for a grant of legal aid to Legal Aid New South Wales. That application having been refused, she has sought to appeal the refusal.
The mere lodgement of her appeal brings into effect the provisions of s 57 of the Legal Aid Commission Act 1979 (NSW) (“Legal Aid Commission Act”).
The provisions of s 57 are set out below:
Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i)has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii)intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b)that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
On behalf of the father, it was submitted that there are special circumstances in this matter such as to justify refusing the adjournment.
Firstly, it was submitted, the adjournment should be refused because the parenting orders made on 8 November 2023, were expressed to remain in force only until today. There is some force in that submission but Senior Counsel for the mother conceded that he could not be heard against a continuation of those orders, pending further order.
Secondly, it was submitted that, because the mother had not complied with directions for the filing of her response and affidavit evidence, the adjournment should not be granted.
Compliance with directions and orders, including procedural orders such as orders for the filing of material, is a serious matter and non-compliance can have consequences. However, I do not accept that, in this case, the mother’s non-compliance should have the effect of denying her the adjournment she seeks. The mother was represented until 1 December 2023 when her solicitor ceased to act for her. Since that time she has applied for and been refused a grant of legal aid and she has sought assistance from various agencies which offer pro bono legal representation. Her solicitor and Senior Counsel appeared pro bono today for the purpose of making the adjournment application. She is resident in the USA and she is impecunious. Her documents have now been filed, albeit late.
In practical terms, the father is not at all disadvantaged by the adjournment because X will remain in his care until such time as the mother’s appeal is determined by the Legal Aid Review Committee and the matter can be relisted.
I propose to grant the adjournment.
COSTS
The father seeks an order for the costs thrown away by the adjournment.
That application is determined according to the matters set out in s 117(2A) of the Family Law Act 1975 (Cth).
The mother is impecunious. There is no evidence of the father’s financial position but I infer, since he is represented by a solicitor and counsel, because he was able to fly to the USA and retrieve X and because the mother in her affidavit deposes to his international travel in pursuit of his business with offices in Sydney, the UK and the USA, that his financial position is significantly superior to that of the mother.
Further the mother’s right to an adjournment arises, not from any action on her part, but by operation of s 57 of the Legal Aid Commission Act and is not affected by the fact that her material was filed late. Even had the material been filed in accordance with the directions, the matter must be adjourned.
The application for costs will be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 18 December 2023
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