Noack and Noack

[2019] FamCA 82

FAMILY COURT OF AUSTRALIA

NOACK & NOACK [2019] FamCA 82

FAMILY LAW – CHILDREN – Parenting – interim orders where husband is self-represented and brings review application out of time without application for an extension.

Family Law Act 1975 (Cth)

APPLICANT: Mr Noack

RESPONDENT: Ms Noack

INDEPENDENT CHILDREN’S LAWYER: No Appearance

FILE NUMBER: MLC 3650 of 2013

DATE DELIVERED: 21 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 February 2019

REPRESENTATION

THE APPLICANT: Mr Noack In Person

COUNSEL FOR THE RESPONDENT:	Mr Anderon-Morley
SOLICITOR FOR THE RESPONDENT:	Trapski Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates Pty

Orders

1. The oral application for a change of residence is adjourned to be consolidated with the application in a case of the father in the Senior Registrar’s list of cases at 10.00am on 26 March 2019.

2. The application in a case of the father filed 24 January 2019 is struck out.

3. That the father file an amended application in a case setting out with precision the orders he is seeking, such application to be filed no later than 4.00pm on 1 March 2019.

4. That the father have leave to file a further affidavit(s) by no later than 4.00pm on 1 March 2019.

5. That the mother file any response for which she is so advised by no later than 4.00pm on 13 March 2019 together with any affidavits in support of her response upon which she intends to rely.

6. That all documents filed by the father be served immediately after filing upon the solicitors for the respondent and upon the Independent Children’s Lawyer electronically to the addresses shown in the Notice of Address for Service of each.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Noack & Noack has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3650 of 2013

Mr Noack

Applicant

And

Ms Noack

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a parenting dispute that came into the Judicial Duty List on 21 February 2019.  Notwithstanding argument by the father to the contrary, it could only have been placed in the list before a judge on the basis that it was a review of a registrar’s decision.  The wording of the application appears that way.  The father says that is not the issue so much as the protection of his children, I do not see how I could interpret the matter any other way.

2. The genesis of the application is important.  The parties attended before the Federal Circuit Court in 2018 at which time, orders were made.  Those orders included a transfer of the proceedings to this court.  Dissatisfied with the parenting orders, it seems that the father appealed but was out of time and accordingly, made an application in an appeal before Strickland J.  The court record shows that Strickland J dismissed the application for the extension of time and hence the appeal. 

3. The father also came into the list of the Senior Registrar which was conducted by Acting Senior Registrar Field.  Two particular orders were made in August 2018 both of which, on any sensible interpretation of the father’s present application in a case, were directed to a variation of the orders made in the Federal Circuit Court.  The orders were made in August but the review application was not filed until recently and accordingly, the father was out of time to ask the court to review the registrar’s decision.  It was difficult to explain that to the father as he was adamant that the issue was about the safety of his children.

4. The father had filed an application in a case seeking a change of residence (albeit it is a stream of consciousness rather than a precise set of orders) and that was listed for hearing on 27 March 2019 in the Senior Registrar’s list of cases (although I understand that that has now been brought forward to 26 March 2019).

5. As the transcript will show, I endeavoured to explain to the father the procedural difficulties in the way he was conducting the case but I suspect I failed.  He had not adequately (if at all) served the Independent Children’s Lawyer who had written indicating the he did not intend to appear.  The solicitor for the mother did attend but had filed no material indicating that he eventually got the documents as (conceded by the father) from the portal.  It seems the documents had been sent by email to an incorrect address.

6. The mother’s response was to simply seek that the father’s application for the review returnable on 21 February 2018 be dismissed.  The father then said that he was making an oral application for a change of residence and I pointed out to him that much of the material upon which he intended to rely, was not evidence at all but rather a string of documents and assertions along with statutory declarations.

7. The father accused the court of not being interested in the welfare of children, an accusation that I reject.  I pointed out to him that if the matter was as urgent as he said it was, he should approach the Department of Health and Human Services.  He said that he had done so but it appears that they were not interested.  He also made serious accusations against police which he said had been recorded by his child on a mobile phone.  He said that those matters are now the subject of an investigation against the police.  These allegations are all serious and it would be improper for the court to not have the opportunity of hearing from the mother and most importantly, hearing the views of the Independent Children’s Lawyer.  The father expressed concern that the court was not addressing his issues and accordingly, I invited him to commence the application based on the material he had placed before the court but warned him that if I heard the matter and could not establish that there was a significant change of circumstances subsequent to the orders of the Federal Circuit Court, I was not prepared to waste the court’s resources and give him a series of dates where he could simply litigate the whole issue again.

8. The father (I think) understood that the court’s resources were scarce.  I pointed out to him that his complaints about resources and attention to his case were not matters that I could do much about and as I have earlier observed, I was prepared to hear his case on the basis of the evidence he presented before the court. 

9. Wisely or otherwise, the father withdrew his application for a review which would have failed anyway because it was out of time and no extension of time had been sought.  He said that he would proceed with his application before the Senior Registrar on 26 March 2019.  I have warned him that I cannot guarantee that time will be allocated to conduct the case if he wants it conducted but that I would have the Senior Registrar put on alert that there was a case that needed urgent attention.  I have urged the father to obtain legal advice.  He said he could not afford that but I reject that on the basis that there are free legal services all around Melbourne which would at least give him some assistance rather than him read provisions, as he understood them, in legislation which are clearly not correct.

10. I have set a timetable for the purposes of the hearing before the Senior Registrar.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 February 2019.

Associate: 

Date:  21 February 2019