Mullen & Rayne
[2022] FedCFamC2F 1457
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mullen & Rayne [2022] FedCFamC2F 1457
File number(s): MLC 9072 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 September 2022 Catchwords: FAMILY LAW – emergency interim hearing – Father does not attend despite opportunity - order made suspending recently made Final Orders – adjourned to next Circuit – Mother’s solicitors to serve and advise Father of orders by text message. Legislation: Family Law Act 1975 (Cth) s 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rule 10.13(1)
Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 5 September 2022 Place: Town B (via Microsoft Teams) Counsel for the Applicant: Ms Damon Solicitor for the Applicant: Morrison And Sawers Solicitor for the Respondent: No appearance ORDERS
MLC 9072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLEN
Applicant
AND: MS RAYNE
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 SEPTEMBER 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.Orders 4 and 5 of the Orders made on 2 March 2022 are suspended.
2.The matter be adjourned for interim defended hearing in the Town B Circuit sittings of the Federal Circuit and Family Court of Australia on 14 November 2022 at 10.00am.
3.The Father file any responding material he relies on by 4:00pm on 14 October 2022.
4.The Mother file any material in response to that responding material filed in accordance with Order 3 herein by 4:00pm on 1 November 2022.
5.The Mother is to:
(a)Ensure these orders are served on Father.
(b)Notify the Father of the substance of these orders by text message this day.
6.Liberty to apply be reserved.
AND THE COURT NOTES THAT:
A.The Mother will seek final orders as undefended in the event the Father does not appear on the next occasion.
B.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 pseudonym Mullen & Rayne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). This matter comes before me as a matter of urgency on the first day of the September Town B Circuit.
Ms Damon of Counsel appeared on behalf of the Applicant Mother, and there was no appearance on behalf of the Respondent Father.
The Affidavit of Service and the Acknowledgement of Service that were filed on 29 August, exhibit M1 dated 5 September 2021 and a text message, demonstrate that this day the Father has been alerted of the matter being in Court today and that it would proceed at 2.15pm. In addition, page 7 of exhibit M1 is a record of attempts to telephone the Father to remind him of the proceedings at 10.35am and 10.47am today when, I am told and I accept, the phone call was not answered.
The Father is the father of two children aged 10 and 8. Previously, proceedings had been issued in August 2019 and were resolved by Final Orders made by consent on 2 March 2022 (‘the Final Orders’). Those orders provided for the Mother to have sole parental responsibility for the children subject to conditions about keeping the Father informed and notifying him of decisions. In paragraphs 4 and 5, it was ordered that the Father spend time with the children on special occasions and each third weekend, from 9am on the Saturday until 12noon on the following Sunday. In addition the Father was to communicate with the children by telephone or an electronic means each Wednesday between 7-7.30pm.
The Mother issued these proceedings without a section 60I certificate on 23 August 2022. The Mother filed a detailed Affidavit containing 10 pages plus annexures, over 31 paragraphs and an Initiating Application on 23 August 2022. Therein the Mother sought orders that the Final Orders be discharged, but has this day sought that for the time being, they be suspended. The next time in the ordinary regime for the Father to spend time would be, I am told, on the coming weekend, commencing on Saturday 10 September 2022.
The Mother’s Affidavit sets out in some detail a history of the children’s fear of the Father, allegations of their welfare being affected include by the Father’s drug use and his driving a motor car inappropriately with the children in the car, as well as exposing the children to family violence directed towards his partner. The Mother also deposes that Child Protection have advised her not to make the children available.
I have not heard the Father’s side of the story. However, I am satisfied that he has had the opportunity to appear and provide his side of the story to me and to the Mother, and that has not happened. I do not know why the Father has not appeared before me. I also note that the Father had a criminal matter listed on 26 August 2022, but I do not know the date of the alleged offence. The Magistrates’ Court electronic and filing appearance system of the Town B Magistrates Court shows that the criminal matter is now listed for Contest Mention on 18 October 2022 in the Town B Magistrates’ Court. I was provided that information by the Mother’s Counsel and accept what she tells me.
I will not recite the matters that cause the Mother to assert very significant concern about the children being exposed to family violence and drug abuse and neglect in the Father’s care. However, those matters are of sufficient seriousness that they compel me to suspend paragraphs 4 and 5 of the Final Orders, and provide for the Father’s time to be suspended until further order. The Court notes that the Mother will seek an order that the matter proceed undefended in the event the Father does not attend on the next Court date. There will also be a notation relating to Rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, that the Court may at any time vary or set aside an order, depending on circumstances, if it was made in the absence of a party.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 28 October 2022
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