Nowick & Olivier
[2024] FedCFamC1F 330
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nowick & Olivier [2024] FedCFamC1F 330
File number: BRC 8257 of 2017 Judgment of: SCHONELL J Date of judgment: 16 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father commenced proceedings by way of an Initiating Application filed in November 2017 seeking orders as to parenting and as to property – Where there has been no appearance by or on behalf of the father on no less than four court occasions – Where it is inferred that the father has no intention to prosecute his Initiating Application – Where the mother withdrew her Response to an Initiating Application – Initiating Application of the father dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Crimes (Administration of Sentences) Act 1999 (NSW) s 77
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 16 May 2024 Applicant: Litigant in person (did not appear) Solicitor for the Respondent: Ai Legal Solicitor for the Independent Children's Lawyer: Chidiac Legal ORDERS
BRC 8257 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NOWICK
Applicant
AND: MS OLIVIER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
16 MAY 2024
THE COURT NOTES THAT:
A.The time is now 9.43 am. The father was sent a Microsoft Teams link addressed to the superintendent of the institution where the father is, as I understand it, currently incarcerated and there is no appearance before me this morning.
AND THE COURT LATER NOTES THAT:
B.This matter is listed before me today. I note there is no appearance on behalf of the father.
C.I note that this is not the first occasion on which there has been no appearance on behalf of the father. In that respect I note the matter was listed on:
(i)29 May 2023 and there was no appearance on behalf of the father;
(ii)11 September 2023 there was no appearance on behalf of the father; and
(iii)3 October 2023 there was no appearance on behalf of the father.
AND THE COURT ORDERS THAT:
2.The Initiating Application filed 3 November 2017 is dismissed.
3.The Response filed on behalf of the respondent sealed 15 December 2017 is withdrawn and dismissed.
4.The Independent Children’s Lawyer is discharged.
AND THE COURT NOTES THAT:
D.Reasons will be given in due course.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Nowick & Olivier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 3 November 2017 the applicant father filed an Initiating Application seeking orders for equal shared parental responsibility and a week-about living arrangements in relation to the parties two children then aged seven and three years. He also sought financial orders in relation to a property at Suburb B in the name of the respondent mother.
On 15 December 2017 the mother filed a Response to the Initiating Application seeking sole parental responsibility of the children, that the children live with her and a declaration that the father has no interest in the property at Suburb B.
On 16 May 2024, as a consequence of a repeated failure by the father to appear, I dismissed his Initiating Application. I indicated at the time that I would give reasons for the making of such an order. These are those reasons.
On 19 December 2017 interviews were undertaken for the purposes of a Child Dispute Conference. The memorandum following that conference records that:
The father has not had contact with the children since a provisional Apprehended Violence Order (AVO) was issued against him following an incident [in mid] 2017.
Under the heading of “Future Directions” the family consultant identified that allegations of family violence, child abuse and mental health are of the utmost concern. The report noted that there were two ongoing police investigations: one in relation to an Apprehended Violence Order (“AVO”) and one in relation to a Child Abuse Investigation. In that respect, the memorandum recorded that the father was facing a charge of sexual assault in relation to the eldest child as well as sexual offences against the mother.
On 14 August 2018 a Magellan Report was prepared. The Magellan Report recorded that a JIRT Child Protection Case Worker had noted that sexual abuse and domestic violence (“DV”) of the child had been substantiated and that the father was identified as the person causing harm. The Magellan Report recorded as follows:
The person causing harm record states “on the balance of probabilities, sexual harm […] and psychological harm (exposure to domestic violence) has been substantiated by JIRT”.
The JIRT file was closed noting that there was an ongoing police investigation. A Community Services Case Worker, in August 2018, completed a risk re-assessment for the children who were in the sole care of the mother and the risk level was assessed as low.
On 29 May 2023 the matter was listed before a Judicial Registrar. There was no appearance on that occasion by the father. The mother’s solicitor appeared as did the Independent Children’s Lawyer (“the ICL”). The Court noted that the fathers’ criminal proceedings have been adjourned to early 2024 for a trial of approximately three weeks, that he was on bail until 2022, has since been bail refused, and is now in custody pending the outcome of his criminal proceedings.
The matter next came before the Court on 11 September 2023. Again, there was no appearance on behalf of the father. The mother and the ICL appeared. On that occasion the Chief Justice made various procedural directions noting that the father is incarcerated, and his criminal proceedings are listed for a three-week hearing commencing in early 2024. The Court further noted as follows:
The matter in this Court cannot progress until August 2024 at the earliest. Accordingly, it may be desirable for the matter to be discontinued with a right of reinstatement, if required, once criminal proceedings are concluded.
On 27 September 2023 the mother’s solicitor swore an affidavit which identified that on 18 September 2023 he contacted the Corrective Services New South Wales Inmate Location Service to ascertain the location of the father. The solicitor deposes that he was subsequently advised that the father was located at C Correctional Centre and caused a letter to be directed to that centre which identified that the matter was next listed in late 2023.
On 21 September 2023 an email was sent to the mother’s solicitor from C Correctional Centre which records the following:
Please be advised that [the father] was offered full documentation as requested at approximately 14:00hrs and refused to accept them.
Should you require any further information, please do not hesitate to contact me.
The matter was next before the Court on 3 October 2023. On that occasion there was no appearance before the Chief Justice on behalf of the father. There was an appearance on behalf of the mother and the ICL. On that occasion, the Court made orders for sole parental responsibility in favour of the mother and restrained her from moving the children from the Commonwealth of Australia. The Court further recorded that the matter would be referred to another judge for case management.
On 16 October 2023 orders were made in chambers directed to the parties and the ICL that, in the event there is no appearance by or on behalf of the father on 16 May 2024, the outstanding applications of the mother may be listed for hearing on an undefended basis.
On 15 May 2024 an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) was directed to the Governor of the C Correctional Centre directing the Commissioner pursuant to s 77 of that Act cause the inmate, namely, the father, to attend Court by Microsoft Teams video link between C Correctional Centre and the Court on 16 May 2024 between 9.30 am and 10.30 am, with such video link to commence at 9.30 am.
At 9.30 am on 16 May 2024 I was informed that there was no appearance on behalf of the father but there was an appearance on behalf of the mother and the ICL. I further note that at 9.40 am there was still no appearance by or on behalf of the father.
I was advised by the mother’s lawyers that the father’s criminal trial had been adjourned to a future date.
In circumstances where the father has consistently failed to appear before the Court on no less than four occasions, and in light of the correspondence referred to above, I am satisfied that there is no intent on the part of the father to prosecute his application. In those circumstances, consistent with the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth), calling for the quick resolution of disputes and the efficient delivery of justice it is inappropriate that the application remains extant, and therefore should be dismissed. Following submissions by the mother her Response to the Initiating Application was withdrawn and dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 16 May 2024
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