Meadis & Meadis (No 2)
[2022] FedCFamC1F 429
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Meadis & Meadis (No 2) [2022] FedCFamC1F 429
File number(s): MLC 11834 of 2016 Judgment of: BENNETT J Date of judgment: 10 June 2022 Catchwords: FAMILY LAW – PARENTING – multiple interim applications said to require determination before the final defended hearing which is schedule to take eight days and commence in four months time – interim applications include review of a Registrars decision, the mother’s application in a proceedings pending and the father’s response thereto and the father’s contravention application – insufficient court time to deal with all interim matters – some matters are not appropriate dealt with as interim matters.
FAMILY LAW – PARENTING – mother’s application to change children’s names and withhold any information that could lead to the father ascertaining the whereabouts of the children or herself – where the father has been convicted of serious assault of the mother which has allegedly left her in fear of her life now that he is released from prison.
FAMILY LAW – PARENTING – where mother allegedly obtained approval of the County Court of Victoria to change the children’s names by an order in proceedings all of which are supressed under state legislation – need for some corroborative evidence of the Order to which the mother deposes.
FAMILY LAW – PRACTICE & PROCEDURE – where there must be an equitable application of court resources between cases awaiting hearing – where parties are limited on the adjourned date to a few of the many interim applications currently before the court on the basis that the balance will have to be determined at trial (if it is appropriate to determine them at all).
Legislation: Family Law Act 1975 (Cth) s 102NA
Births, Deaths and Marriages Registration Act 1996 (Vic) s 26
Open Courts Act 2013 (Vic) s 19
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 10 June 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Did not participate Counsel for the First Respondent: Mr Nicholson Solicitor for the First Respondent: Harris Lieberman Solicitors Pty Ltd Counsel for the Second Respondent: Litigant in person Counsel for the Third Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms McLeod Solicitor for the Independent Children’s Lawyer: Joliman Lawyers ORDERS
MLC 11834 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MEADIS
Applicant
AND: MS MEADIS
First Respondent
MR G MEADIS
Second Respondent
MS H MEADIS
Third Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.The further hearing of this matter be adjourned to Wednesday 15 June 2022 at 3:30 p.m. (“the adjourned date”) estimated to take no longer than 2 hours and each party be restricted to a maximum of 20 minutes for oral submissions.
2.Within 2 clear working days the mother cause to be sent to Mr AA, Registry Manager, Federal Circuit and Family Court of Australia GPO Box 9991, Melbourne Vic 3001 a sealed envelope containing details of the address at which the children reside. IT IS DIRECTED THAT upon receipt of the said envelope the Registry Manger deposit same securely in the Registry to be held unopened pending an order by me, or if I am not reasonably available, another Judge of Division 1 that the information provided by the mother be disclosed.
3.I DIRECT the Registry Manager of this Registry of the Court to contact the Registrar of the County Court of Victoria or, in her absence, the Acting Registrar of the County Court of Victoria to enquire whether:
(a)an order has been made by that court pursuant to s26(4) of the Births Deaths and Marriages Registration Act 1996 approving a change of name for the children previously known as X born in 2006, Y born in 2008 and Z born in 2010;
(b)the aforesaid order has been supressed pursuant Open Courts Act 2013;
(c)the aforesaid order and the suppression order remain in full force and effect in that they have not been discharged, varied or set aside; and
(d)seek confirmation in writing from the Registrar of the County Court of Victoria or, in her absence, the Acting Registrar of the County Court of Victoria of her response.
4.For the purpose of giving effect to the preceding Order, the Registry Manager may have reference to the affidavit of Ms Meadis sworn 5 May 2022 and may provide a copy of that document to the Registrar of the County Court of Victoria or, in her absence, the Acting Registrar of the County Court of Victoria.
5.If written confirmation from Registrar of the County Court of Victoria or, in her absence, the Acting Registrar of the County Court of Victoria of the said orders is forthcoming, that confirmation stand as proof that the said orders have been made.
6.The matters to be determined on the adjourned date are confined to paragraphs 3, 4 and 5 of the respondent mother’s Application in a Case filed 21 March 2022 and paragraphs 23, 33 and 34 of the applicant husband’s response to an Application in a Case filed 16 May 2022 and the cost certificate for the hearing which did not proceed on 23 May 2022.
AND THE COURT NOTES THAT any party who fails or neglects to attend court or to participate in a hearing should assume that the matter will proceed to determination without any further input by him or her.
AND THE COURT FURTHER NOTES THAT the ICL does not press the subpoena directed to the Proper Officer, Subpoena Unit Management Unit, Facebook Australia Pty LtdNote: 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 the pseudonym Meadis & Meadis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
By correspondence sent on 5 June 2022 to the court and the other parties the husband requested an adjournment of this matter. The husband states that there is insufficient time to deal with all matters which the parties, or some of them, wish to agitate on an interim basis. By interim I mean prior to the final hearing of this matter which is set down for hearing to commence on 20 September 2022. Next the husband states that he could not participate in this hearing this afternoon because he had arranged leave from work this morning (to which the matter was listed until very recently). Finally, the husband states that he is not well enough to participate. I am confident that the first of the husband’s statements is correct.
The adjournment is not consented to by the wife or the Independent Children’s Lawyer. I do not grant the adjournment. There is no appearance by or on behalf of the father today. The hearing is conducted electronically and the husband has been sent a link for the MS Teams meeting. All of the other parties are present and participating.
There are several applications listed for today.
First, there is the father's application for a review of the orders made by Senior Judicial Registrar Hoult on 14 September 2021 (and amended pursuant to the slip rule on 3 March 2022). The application for a review specifies orders sought which substantially exceed any relief which was sought before the Senior Registrar, including a whole new set of parenting arrangements. It is not the appropriate process with which to seek a new parenting regime.
Second, there is an Application in a Proceeding filed by the wife on 24 March 2022, in which she seeks to legitimise her change of name for each of the children and the various steps taken by her to secure anonymity. She also seeks that in the management of the case and preparation for hearing, including the family report, there be absolutely no reference to anything that could lead her whereabouts or the children's whereabouts to be identified.
Third, the father has responded to the wife’s Application in a Proceeding seeking a raft of orders which duplicate in some respects the raft of orders sought in his application for review. The husband opposes the relief sought by the wife. He also seeks 37 orders, ranging from joint parental responsibility to dismissing the Independent Children's Lawyer appointed in the proceedings, and seeking the appointment of another independent children's lawyer.
Fourth, there is the application of the father filed on 10 May 2022 in which he alleges that the mother has without reasonable excuse contravened orders of the Court. That largely relates to the whereabouts of the children and the names by which they are known.
Fifth, there is a notice of objection to a subpoena filed by the husband. That subpoena is issued at the behest of the Independent Children's Lawyer. The husband's objection to it was that essentially it is too broadly expressed that it does not request a document, and potentially calls for an opinion. I do not see quite where he gets the "doesn't request a document", because it clearly does. He also submits that there is not a legitimate forensic purpose for the documents sought. For other reasons, the independent children's lawyer does not proceed with that subpoena, so that does not remain an issue.
Obviously, there are too many applications to be dealt with as interim applications. Indeed, it would be an inappropriate use of Court resources to devote an extended time to the hearing of applications on an interim basis when it has been allocated a hearing of eight days, commencing on 20 September 2022. An eight-day trial is a long trial for this Court. Accordingly, this matter is already taking up a significant amount of Court resources.
The father also sought an adjournment of today’s hearing because, he said, he does not have lawyers. He also wanted an order made pursuant to section 102NA of the Family Law Act 1975 (Cth). However, I have already made that order for his benefit. That order was made for his benefit on 5 January 2022. I have perused the documentation that I have in the matter. I cannot say that I have digested and committed to memory each and every aspect of it, but I have perused it for today's hearing, and I do not recall any evidence from the husband as to what he has done to apply for a lawyer to be appointed pursuant to the order made on 5 January 2022. That required him to make an application to Legal Aid, and it does not appear to me that he has done so, or at least, there is not any evidence that he has done so.
It would be inappropriate of me to make a 102NA order on top of another 102NA order that may not have been implemented. Furthermore, the purpose of a s102NA order is to prevent cross-examination by or of a victim of domestic violence by an alleged perpetrator. Given the criminal conviction of the husband for assault of the wife this is a case to which s102NA applies. However, it was not contemplated that there would be any cross-examination today. Indeed, if cross-examination were to be permitted in relation to all the matters before the court this interim hearing would take multiple days. In short, the hearing today was not a hearing at which it would have been appropriate for the husband to require representation by a s102NA order or for Victoria Legal Aid to extend such representation.
On Monday 6 June at 11:34 a.m. my chambers advised the husband that the matter would remain listed today but commence at 1 pm as I was unavailable earlier in the day. At 4.11 pm yesterday, the father wrote again to the Court, saying that with his employment, he had arranged to take the morning off with his employer, but he was otherwise committed to work outside those times, and that he is working shifts and he is not contactable during the day, and he could not then go back and ask for time off in the afternoon on such late notice. He also said that it has put him under a lot of pressure, running the proceedings as a self-represented litigant, and that he is going to an appointment with his general practitioner to obtain further support because of this.
Today a document sent to the court by the father is marked Exhibit “C1”. It is dated 10 June 2022, and states:
[Mr Meadis] states he has a medical condition and will be unfit for Court from 10 June 2022 to 10 June 2022, inclusive.
Exhibit “C1” is purportedly signed by a Dr BB. It appears that the father attended upon the general medical practitioner today and arranged for this letter to be prepared. The letter does not say anything. It does not constitute evidence that the father is ill, it does not constitute evidence that he is unfit for work. All it says is that he has told the doctor that he has an unspecified medical condition and that, in the husband's opinion the husband is unfit for Court today.
The impression with which I am left is that the husband is fit enough to go to work this afternoon but is not fit enough to prosecute the proceedings that are before the Court this afternoon. I propose to deal conservatively with the matters before the Court, taking only those matters which would otherwise interrupt or perhaps necessitate some delay of the final defended hearing. They have been outlined to me by counsel for the mother as being the father's application to discharge the independent children's lawyer, an application in relation to discovery of the independent children's lawyer's correspondence with one of the parties, and the mother's application to preserve her anonymity.
I am satisfied that the father understands that this matter is proceeding this afternoon. His parents are parties to the proceedings. His parents are participating in the proceedings. There is, as far as I am aware, no indication made to the father that there would be an adjournment of today's proceedings. So therefore, I will proceed on the basis that he has been accorded procedural fairness. There is nothing before me to indicate that he is otherwise unfit to participate.
In the running of the matter it has become apparent that a central issue is whether the mother has, as she swears, attained an order from the County Court of Victoria authorising her to change the children’s names in order to protect her (and the children) from being located by the husband. This is in the context of the husband having been found to have assaulted the wife seriously. On 19 September 2019 the husband was sentenced in the County Court of Victoria following a plea of guilty to the following charges:-
(a)False Imprisonment (Common Law);
(b)Aggravated Burglary- Offensive Weapon;
(c)Make threat to kill; and
(d)Common Assault.
The offences were committed by the husband against the wife in mid-2018. The husband was released from jail in late 2021 on parole. The proceedings in this Court have continued throughout. The husband’s parole is due to expire in early 2023. I do not recall seeing any statement of the husband’s parole conditions if there are any conditions to his parole.
The test for the granting of such an order by the County Court under s 26(4) of the Births, Deaths and Marriages Registration Act 1996 (Vic) is the best interests of the children. The mother’s recent affidavit goes through the order but only in a very generalised way and I have no other proof of the order having been made. In discussion with Counsel and the husband’s parents, who are respondents in the proceedings, I have decided that it is appropriate to try to obtain some corroborating evidence of the order from the County Court of Victoria and I will order accordingly.
My availability to deal with this case prior to the dates allocated for the final defended hearing is limited. I will take the matter next Wednesday afternoon but the parties will have a necessary restricted opportunity to make submissions. The only matters that will be dealt with, subject to any other order by me, are paragraphs 3, 4 and 5 of the mother’s Application in a Proceeding, which relate to her anonymity, and paragraphs 33, 34 and 35 of the husband’s response to the mother’s Application in a Proceeding which relate to the independent children’s lawyer remaining in the proceedings.
I anticipated that the Registry Manager of this court and the Registrar of the County Court would have a reasonable time in which to secure some confirmation of the proceedings to which the wife refers. However, as I dictate these reasons for decision it is apparent they will have only a day or so. In advance I thank them for dealing with the matter expediently.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 15 June 2022
0
0
0