Milton & Anor and Mahoney & Anor

[2012] FamCA 274

FAMILY COURT OF AUSTRALIA

MILTON AND ANOR & MAHONEY AND ANOR [2012] FamCA 274

FAMILY LAW – CHILDREN – Application by maternal grandparents withdrawn

Family Law Act 1975 (Cth)

APPLICANTS: Ms J Milton and Mr Milton

RESPONDENTS: Mr Mahoney and Ms C Milton

INDEPENDENT CHILDREN’S LAWYER: Ms Paul

FILE NUMBER: TVC 277 of 2011

DATE DELIVERED: 12 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 12 April 2012

REPRESENTATION

THE APPLICANTS: No appearance

THE RESPONDENTS: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland, Townsville

Orders

IT IS ORDERED THAT

1. Any and all Applications and Responses filed by the Respondents be dismissed. 

2. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children’s Lawyer shall have leave to publish an account of these proceedings to the Director-General of the Department of Communities (Child Safety Services), namely:

   a.The Orders made by Federal Magistrate Coker on 14 April 2011;

   b.These Orders; and

   c.A copy of the ex tempore Reasons given today.

3. All extant Applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

4. All material produced pursuant to subpoenae issued for the production of documents be returned to their respective providers after the time for appeal has lapsed.

5. The Independent Children’s Lawyer be discharged upon the expiration of any applicable appeal period or the determination of any application for costs, whichever is the later.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milton and Anor & Mahoney and Anor 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: TVC 277 of 2011

Ms J Milton and Mr Milton

Applicants

And

Mr Mahoney and Ms C Milton

Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. The maternal grandparents initially represented themselves in these parenting proceedings but filed a notice of discontinuance some time ago with a view to bringing this matter to a proper conclusion. (See generally section 69ZN and section 69ZQ of the Act.) 

2. Procedural orders were made for the parties to participate in a family report process and for the matter to be listed before Registrar Boyd in Townsville and subsequently before me in that city. 

3. An affidavit filed 3 April 2012 by the family report writer deposes to attempts being made to contact the parties for the purposes of them participating in the report foreshadowed.

4. Neither party attended for that report despite attempts to have them do so.  Subsequent to the procedural orders made by me on 7 February 2012, the Court wrote to each of the mother and father at the address indicated for them on the Notice of Ceasing to Act filed by the practitioners who previously represented them. 

5. Each of those letters were contained in an envelope that bore a stamp saying “Family Law Courts, Townsville”. Each of those envelopes are marked in the same writing with the same pen: “Please return.  Address unknown”.

6. The Court wrote again on 14 February 2012 to the parties advising them of the arrangements for them to be heard by telephone this morning and, again, the same notation was contained on the envelope and the letter was returned. 

7. Ms Paul the Independent Children’s Lawyer, deposes in an affidavit filed by her on 3 April 2012 to a number of attempts made by her to facilitate the participation of the parties in the proceedings.  In particular, at public expense, Ms Paul arranged for the personal service of the letters advising of the hearing before me today upon the parties. An affidavit of service has been filed by Ms Paul on 22 March 2012 deposing to that personal service. 

8. Ms Paul, in her affidavit, refers to attempts to telephone the respondents on the mobile telephone number which is listed in the Notice of Ceasing to Act filed by Gun Lawyers, who previously represented one of the respondents.  Ms Paul deposes that on each occasion she heard a voice message stating: “This message bank is full.  Please try again later.  Goodbye”.

9. The Court has had a similar response to attempts to contact each of those two parties by telephone. 

10. The facts and circumstances of this case give rise to significant concern for these children.  There has been Departmental involvement in the case. 

11. But this Court is a court that deals with inter-parties disputes pursuant to the Family Law Act. None of the parties (or potential parties) to this dispute have participated in court processes or complied with procedural orders so as to participate in court processes. In those circumstances, the work of this Court is done.

12. I will make orders bringing this matter to an end and removing it from the list.

13. As I have said, the Department of Communities (Child Safety Services) has had some involvement in this case. It may be, given the history of these proceedings and the matters addressed in the evidence filed within them, that these children come to the attention of the Department of Child Safety in the future. It is in my view appropriate, consistent with the co-operative relationship that exists between that Department and this Court, for me to order, pursuant to section 121(9)(g) of the Act, that an account of these proceedings namely the orders made 14 April 2011, the orders made by me today and these short ex tempore reasons be provided to the Director-General, Department of Child Safety and to such authorised officer of that Department as she might choose.

14. I will also formally make an order discharging the Independent Children's Lawyer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 April 2012.

Associate: 

Date:  30 April 2012