O'Neill and Fletcher

[2007] FamCA 290

FAMILY COURT OF AUSTRALIA

O’NEILL & FLETCHER [2007] FamCA 290

FAMILY LAW - JURISDICTION - Telephone mention – proposal to open communication between Hague convention liaison Judges in non-Hague matter between Australia and Canada to where young girl was permitted to relocate in 2005 – orders made as part of relocation that child spend time with father in Australia not complied with by mother in Canada – mother obtained ex parte suspension of order from courts in Canada. 

Family Law Act 1975

APPLICANT: Mr O’Neill

RESPONDENT: Ms Fletcher

INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

FILE NUMBER: MLF 5472 of 1999

DATE DELIVERED: 23 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 March 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No Appearance

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Crabtree

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

Orders

1. That the further hearing of this matter be adjourned to 23 April 2007 at 9:30am (Melbourne time) for mention.

2. I DIRECT that my reasons for judgment this day be transcribed and when transcribed the original placed on the Court and a copy sent to all parties.

3. I DIRECT that my Associate write to the Registrar of the Federal Magistrates Court requesting a copy of any reasons for judgment delivered by Federal Magistrate Walters in relation to the hearing which concluded on 5 May 2005 and, if no such reasons are available, that the Federal Magistrates Court provide a copy of the transcript of the final hearing of these proceedings before Federal Magistrate Walters as soon as practicable.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5472 of 1999

Mr O’Neill

Applicant

And

Ms Fletcher

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter which concerns the child a daughter born inAugust 1998 and came before me this morning by telephone mention, this being the date to which I adjourned the proceedings to at the mention on 13 February 2007. 

2. The father appeared in person. 

3. The independent children's lawyer appeared through Mr Crabtree. 

4. There was no appearance by or on behalf of the respondent mother.  I will deal with the circumstances of that non-appearance shortly. 

5. These reasons explain why I have adjourned the matter to me for further telephone mention at 9:30am Melbourne time on 23 April 2007.  On that day it will be necessary for me to review whether the matter can or ought remain listed as a defended matter on 27 April 2007. 

6. Turning to the non-appearance by the father this morning.  My chambers was advised by the telephone company Telstra that a call was placed to the mother’s telephone number as shown on the notification sent to all parties on 27 February 2007; that is to number … .  That letter of 27 February 2007 contained particulars of the telephone mention, being 9:30am this morning, Melbourne time.  The telephone company was apparently advised by the mother that she would not participate personally in the proceedings but that her lawyer would do so on her behalf, and the telephone company was then given a telephone number for Ms R.  However, when placing a call to that telephone number they received only a telephone messaging service and were not able to make contact personally.  It is in these circumstances that the telephone mention proceeded without there being participation by or on behalf of the mother. 

7. I am advised that the outcome of the hearing on 27 February 2007 in Canada was that the father would have 21 days to file material in anticipation of the court in Canada hearing the matter on the next date, which is 20 April 2007. 

8. There are a few things to be noted. 

9. When I delivered reasons for judgment on 13 February 2007 I ordered that they be transcribed.  Unfortunately, there was a considerable delay in the court being provided with a copy of the transcript and it was not possible for me to settle or for my Associate to sign off on the reasons for judgment until 26 February 2007.  Fortunately, we knew that we had some time advantage because of the difference in time zones between Australia and Canada. 

10. The reasons for judgment of 13 February 2007 and a copy of the transcript of 20 December 2006 was dispatched by my Associate to the father, the mother and Mr Lampe.  I had intended that be immediate but it must not have been clear because, it transpires, that the documents were most likely dispatched by prepaid post; which was wholly inadequate for the purpose of having that information available to the Court in Canada on 27 February 2007.  

11. I assume that, on 27 February 2007, the court in Canada would not have had access to either my reasons or the transcript of proceedings on 20 December 2006. 

12. The father says that prior to 27 February he called and sent a facsimile to the court in Canada asking for permission to be present by telephone; he was advised that that was not possible and it was also not necessary and he was requested to contact the court following the hearing date to find out the result.  He did that, and it is on that basis that I have said that the matter is apparently set down for hearing on 20 April 2007 in Canada.  

13. The father informed me that he has responded to the substance of the wife's affidavit (although I have not seen that myself) but, most specifically, he has asked the court in Canada not to exercise any jurisdiction it has over this matter and to allow the matter to be resolved in Australia. 

14. I note that, notwithstanding my reasons of 13 February 2007, no one has filed a Notice of Address for Service for the mother.  She is still regarded as representing herself.  The fact of the matter is I cannot force her to participate if she tells the telephone operator that she refuses to do so.  However, it was unfortunate. 

15. In anticipation of the listing of this matter before me on 23 April 2007, I will request the Registrar in the Federal Magistrates Court to provide a transcript of the hearing that was conducted in that court in 2005 before Federal Magistrate Walters because, I am assuming, that no reasons for the learned Federal Magistrate’s decision are going to be available.  I will order that these reasons for judgment be transcribed and sent to the parties.  I request that the independent children's lawyer draw them to the attention of any child representative who is appointed to represent the child in Canada. 

16. I had previously envisaged that court documents from these proceedings, including orders and reasons why the orders were made, would be available to the courts in Canada by co-operation between the two professionals who are retained before each court to represent her interests.  However, I am informed that, as at 27 February 2007, there was no lawyer representing the child’s interests in Canada.  As I understand it; no lawyer had been appointed because the father had not completed an intake form and returned it to the court in Canada.  That is probably not surprising where he was contesting the appropriateness of the exercise of that court's jurisdiction.  Nonetheless, he tells me he has sent it off to Canada duly completed. 

17. I see no alternative but to simply list the matter for review at a date after the next hearing date in Canada but before the next hearing date in this court.  In the meantime, as I discussed with the father and the independent children’s lawyer this morning, I will investigate whether the lines of communication used by the liaison Judges for Canada and Australia in relation to Hague convention matters could be utilised in this non-Hague matter.  I want to avoid a situation where each court waits to see whether the other will adjudicate the matter whilst neither addresses what appears to be the very real issue of the child spending time with the father, to the extent that to do so is consistent with her best interest, as was factored into the equation when the mother was given permission to relocate the child to Canada. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate: 

Date:  30 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as O’NEILL & FLETCHER