O'Neill and Fletcher

[2007] FamCA 103

FAMILY COURT OF AUSTRALIA

O’NEILL & FLETCHER [2007] FamCA 103

FAMILY LAW - Proceedings in Australia and in Canada – inappropriate for one party to correspond with the court – father seeks to have mother dealt with for non-compliance and to enforce parenting orders made in FMC in context of mother’s relocation to Canada – subsequently mother seeks to vary parenting orders ex parte in Canada and obtains suspension of operation of orders requiring mother to bring child to Australia to spend time with father – Australian proceedings referred for final hearing pending father deciding whether he wishes to proceed with applications before FCoA – independent children’s lawyer expresses frustration with process – a child of 8 years of age.

Family Law Act 1975:ss. 68LA(2), 68LA(4), 68LA(5)(d), 68LA(5)(e).
Family Law Rules 2004

Buljubasic & Buljubasic (1999) FLC 92-865

APPLICANT: Mr O’Neill

RESPONDENT: Ms Fletcher

INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

FILE NUMBER: MLF 5472 of 1999

DATE DELIVERED: 13 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 February 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Donald Lampe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Donald S Lampe

Orders

1. That all extant applications, being the application of the father filed 29 January 2007 and the contravention application of the father filed on 27 September 2006 be adjourned to 27 April 2007 as a reserve matter, estimated to take not more than 1 day.

2. That in anticipation of the adjourned date:

   (a)by not later than 21 March 2007 the father file and serve such further applications and affidavit material upon which he seeks to rely in proceedings in this Court;

   (b)by not later than 4 April 2007 the mother file and serve any applications and affidavits in response;

   (c)there be a telephone mention before me in early April 2007 to ascertain the readiness of this matter to proceed.

3. I DIRECT that a transcript be prepared of proceedings before me on

   
   

   20 December 2006 (which was in two parts) and when the transcript is prepared it be placed on the Court file and a copy sent to each of the parties.

4. I DIRECT that my reasons for judgment today be transcribed and when transcribed a copy be available to each of the parties.

5. I DIRECT that the independent children’s lawyer ensure a copy of this order and my reasons for judgment this day and any other documents in these proceedings which he considers are relevant be sent as soon as practicable to the office of the children’s lawyer which has been appointed to represent the child C born in August 1998 together with an extra copy which can be provided by the office of the children’s lawyer to the Ontario Court of Justice.

6. That I reserve liberty to apply to each party.

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. In this matter there is an application by the father filed 27 September 2006 to have the mother dealt with for failing to comply with orders that he spend time with their daughter and a further application filed by him on 29 January 2007.  The respondent to both applications is the mother.  The subject of both applications is the parties' daughter C, born in August 1998 and the attempted exercise by the applicant father of visitation rights with the child in Australia during January and February of this year.

2. Today the father appears in person.  There is no appearance by or on behalf of the respondent mother.  There has been no request for the mother to be joined to the proceedings electronically as she was on the last occasion before me. 

3. The child’s interests are represented by the independent children's lawyer Mr Donald Lampe, who appears today. 

4. I will briefly set out a history of the matter as it has proceeded before me and in recent times.  Orders were made by Walters FM on 5 May 2005.  They were contested proceedings involving the mother's application to relocate the child to Canada.  I do not know why the learned Federal Magistrate has not delivered detailed reasons for judgment in that matter.  It appears that a contested hearing took place, the court received much evidence and submissions by all parties and then His Honour indicated that he was going to permit the respondent mother to relocate.  Then, the parties turned their mind to structuring orders which would enable the mother to go.  I accept the assertion of the husband that he has been seeking them for the last 18 months or so.  My associate has sought them too with no success.  I am now satisfied that the reasons for judgment to which the parties (including the child) were entitled were never delivered. 

5. Returning to the outcome of the contested proceedings, orders were made that enabled the mother to take the child from Australia on the basis that the father have specific contact to the child initially in Canada and then in Australia.  The father exercised visitation with the child in Canada in the terms of the orders.  January and February 2007 was to be the first period of visitation between the father and the child in Australia. 

6. On 27 September 2006 the husband filed an application alleging that the mother had contravened or had expressed an intention to contravene the visitation orders.  That application was set down for hearing on 22 November 2006.  On that day it was transferred by Walters FM to this court.  The Federal Magistrates Court of Australia exercises concurrent jurisdiction with this court.  However, it is accepted that the Family Court of Australia deals with more complex and longer cases.  This is not a complex case so I suppose that the learned Federal Magistrate must have thought that it would take longer than

   
   

   2 days to decide.  

7. The matter proceeded before me on 20 December 2006.  On that day the father appeared in person.  The respondent mother was linked into the proceedings by telephone. 

8. The independent children's lawyer was represented at court.  The mother said that it had been her intention to comply with the orders and that she would be complying with the orders by coming to Australia.  It was necessary to reconvene later in the day and to again link the mother back into the proceedings because she needed to check the availability of flights for herself and the child to Australia.  When that was done the orders which I made were formulated with precision and on the basis of the flight reservations which

   
   

   the mother said that she had secured.  The orders provided that the father would spend time with the child for certain periods between 27 January 2007 and

   
   

   18 February 2007. 

9. I note that during that hearing on 20 December 2006, the mother did not mention any proceedings instituted by her or on her behalf in Canada.

10. It transpires that neither the child nor the mother arrived in Australia on 27 January 2007.  On 29 January 2007 a legal practitioner from Ontario, Canada, namely Ms H, sent a facsimile to the independent children's lawyer Mr Lampe.  That facsimile was a letter and reasons for judgment delivered in proceedings in the Ontario Court of Justice. 

11. The letter read as follows:

    I represent [the mother] with respect to bringing a motion in Ontario to vary the Ontario order of June 2005, which order was an adoption of the original Australian order.  I understand that you are the advocate for her daughter [C].  I have prepared a motion to vary but in light of the ongoing proceedings brought by [the father] in Australia I have filed an ex parte motion in the Ontario Court of Justice.  Edward J required us to attend at court on December 14 2006 when he reserved his decision.  Since we had not heard anything from him and [the mother] was participating in the Australian proceedings by telephone, she felt obliged to agree to bring [the child] to Australia for the access set out in the order. 

    I was on trial last week and received the judge's endorsement wherein he suspended access, except telephone access, and appointed the office of the children's lawyer to represent [the child].  I am enclosing herein a copy of the memo from the judge's secretary, together with the endorsement as signed by Edward J.  I am also enclosing a copy of the order I have drafted which I hope to have signed by the clerk in the next day or two, and then I will send that as well.  I did fax the endorsement to the attention of Judge Bennett on January 25 but it does not appear to have been received.  I am enclosing a copy of my confirmation. 

    Because the decision of Edward J only became available at the last minute [the mother] could only then cancel her plans to go to Australia.  As soon as the order has been formally signed all documents will be sent to Australia for service on [the father].  If you have any question please do not hesitate to contact me or email me. 

12. I note from the enclosed documents that the address for service of the father is the same as the address for service he has filed with this court.  I am unaware, therefore, as to why the mother’s application was made ex parte and without notice to the respondent.  I am informed that there were no documents in support of the application sent to Mr Lampe.  As indicated, the proceedings at which the mother and her then lawyer initiated in Canada and for which they were required to appear occurred in the week preceding the hearing before me on 20 December 2006.  It is surprising, therefore, that no mention of those proceedings or of the application was made by the respondent mother in either session of the court on 20 December 2006. 

13. I note in the reasons given by Edward J of the Ontario Court of Justice, there appears the following observation:

    The clear tenor of this action (to register the order in Canada) was to make the Ontario Court the court of future jurisdiction over this case given the child had been permitted to relocate to Ontario with the applicant mother by Magistrate Walters.

14. There is nothing in the file before me which indicates that the courts in Australia relinquished jurisdiction over the child.  The Family Law Act 1975 clearly operates so that the Australian court has jurisdiction.  Whether or not it chooses to exercise jurisdiction is another matter.  I have not heard submissions nor received evidence on the point, but I observe that in relocation cases it is commonplace for our court to require one party to obtain mirror orders in another jurisdiction.  That is not as part of a relinquishment of jurisdiction into the future but so that, once landed overseas, a party cannot re-litigate or start afresh in the other jurisdiction without complete regard to the basis upon which he/she was permitted to relocate the child(ren) in the first place.  It is also commonly done to aid enforcement, in an anticipatory sense. 

15. The father says that as he heard nothing from the mother or the child he made his application on 29 January 2007 seeking that the child be brought to Australia by an independent person.  He has told me this morning that he does not believe that to be the optimal course at the moment but made the application because he had simply not heard from the mother or from the child or from anyone else. 

16. The father maintains that he has not been served with either the proceedings which went before Edward J, nor Edward J's order.  He says that he knows of those documents and the proceedings via the independent children’s lawyer. 

17. The last application of the husband came before the Honourable Justice Brown on 31 January 2007.  On that day the father appeared in person, the independent children's lawyer was represented and there was no appearance on behalf of the wife.  Her Honour made the following orders:

    (1) That the form 2 filed by the husband on 29 January, 2007 be consolidated with the application for contravention filed by him in the Federal Magistrates’ Court on 27 September, 2006 (which was referred to this Court on 22 November, 2006) and listed for mention before the Honourable Justice Bennett on Tuesday

    
    

    13 February, 2007 at 9:30 am.

    (2)That the wife file and serve a form 2A response and all affidavits in support of that response no later than seven days prior to the adjourned date. 

    (3)That a copy of this order be sent to the wife by :

    (a)email addressed to [the mother] ;  and

    (b)facsimile addressed to [Ms H], Barrister and Solicitor on facsimile number […].

    (4)That a copy of the order of Justice Bennett made 20 December, 2006 be forwarded by facsimile to [Ms H] at the above number.

    (5)That the wife forthwith provide an address for service within Australia as required by the Family Law Rules 2004.

    IT IS DIRECTED

    (6)That the reasons for judgment this day be transcribed and placed on the Court file, and that copies be made available to the parties.

    IT IS CERTIFIED

    (7)That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

    AND THE COURT NOTES

    1.The advice of [Ms H], Barrister and Solicitor of Ontario to the independent children’s lawyer, of an order made by Justice Edward of the Ontario Court of Justice (whether made on 14 December, 2006 or a date in January 2007) suspending the husband’s access to the child [C] born [in] August, 1998, save for telephone access pending the hearing of the wife’s motion to vary the order of Justice Frazer dated 7 June, 2005 (that order being one recognising that an order made in the Federal Magistrates’ Court on 5 May, 2005 was for all purposes an order of the Ontario Court of Justice).

18. It appears that the mother has failed or neglected to comply with paragraph 2 of the aforementioned orders whereby she was required to serve a 2A response and any affidavits seven days prior to today; that time expired on 6 February 2007. 

19. On 7 February 2007 a letter was sent by facsimile by one Ms R, barrister and solicitor of Ontario, in Canada.  The letter was addressed to the associate to Brown J.  The letter reads as follows:

    Please be advised I have been retained by [the mother] to represent her in the Family Court matter.  I enclose herewith a copy of the court order of the Honourable Edward J, dated December 14 2006, and an amended order dated 23 January 2007, as well as a notice of change in representation.  I have reviewed the orders of your court dated December 20 2006 and January 31 2007.  I believe these orders were pursuant to an application to vary brought by [the father] at your court on September 27 2006.  [The mother] had also brought a motion to vary in Ontario on December 14 2006.  It would therefore appear that there are parallel proceedings in both jurisdictions on the same issue of access. 

    Further to the order of Fraser J of June 7 2005, and as well paragraph 1 of the order of Edward J dated January 23 2007, it appears to me that the Ontario Courts have acquired jurisdiction over this matter and the matter ought properly to proceed in Ontario and not in Australia.  In the circumstances my client does not wish to participate in any parallel proceeding in Australia by filing any documents and thereby acceding to Australian jurisdiction. 

    It is my expectation that the matter before your court be dismissed and that [the father] be directed to file responding materials in the Ontario court proceedings.  If this does not accord with your understanding of the situation and your intent please advise as soon as possible.  If that is the case I will be obliged to seek specific directions by motion from the judge seized of this matter, G.B. Edward J.  I would appreciate your prompt consideration.

20. I should, before going further, correct an error in the letter of Ms R to the court.  That is that at no time has the father approached this court or the Federal Magistrates Court seeking to vary the current orders for visitation or contact.  He has only ever sought to enforce them.  Therefore, it is incorrect to say that there are parallel proceedings in both jurisdictions which pertain to a variation of the orders providing for the child to spend time with the father.  It would be more correct to say that the father initiated proceedings in Australia to enforce the orders and the mother subsequently and seemingly without notice to the father sought to vary the orders in Canada. 

21. In any event, on 8 February 2007 a response was sent by the associate to the Honourable Brown J, which read as follows:

    Your letter dated 7 February, 2007 was received by facsimile in the Melbourne registry of this Court that day.  I am instructed by the registry manager to advise as follows:

    1.In Australia no associate to a judge other member of the Court staff can advice [sic] as to the intent of the judge before whom a matter is listed or their “understanding” of the case.

    2.I cannot comment on your “expectation” that the matter will be dismissed when next listed.  At the previous hearing counsel for the independent children’s lawyer foreshadowed submissions as to the appropriate forum, and if that occurs the presiding judge will, in due course, determine the issue pursuant to the doctrine of forum non conveniens.

    3.It is a matter for your client whether she wishes to play any part in the proceedings in Australia or file any documents in those proceedings.  The court record shows that she did appear (by telephone) after orders were made in Ontario and failed to advise the Court, the father or the independent children’s lawyer that any proceedings had been filed in Ontario or any orders made.

    4.Rule 8.05(1) of the Family Law Rules 2004 provides that a party must give an address for service if the party files or responds to an application or seeks to be heard by the Court. As previously advised to your client, Rule 8.05(4) provides that the address for service must be an address in Australia where documents may be left or received by post. It may include a facsimile number and an address for service by electronic communication.

    5.I regret that I cannot advise further.  Your letter will be brought to the attention of the judge presiding on the adjourned date, which is 13 February, 2007.

22. At this point I should make mention of the manner in which proceedings are conducted in this court.  I doubt that it is much different from how proceedings are conducted in Ontario but just in case it is, I will make clear how matters are conducted here. 

23. Persons have a right to appear either by themselves or by a qualified legal representative entitled to practise in Australia.  Parties may appear electronically, and that can take the form of video link-up or telephone link-up.  On two occasions already the respondent has appeared by telephone.  Evidence can take the form of affidavits or in some situations oral evidence.  We do not conduct proceedings by letter.  It is not appropriate to write to associates, to Judges, saying that one may believe that proceedings will be dismissed.  It is not appropriate for any party to have communications with the court about anything other than administrative arrangements and, then, all such communications must be shared and in common with each other party to the proceedings. 

24. In the context of an application for an adjournment, the Full Court of the Family Court observed in the case of Buljubasic & Buljubasic (1999) FLC 92-865 that:

    It is, ordinarily, improper for litigants to seek to communicate with a trial Judge by sending a facsimile or other communication to the court or registrar.  A litigant seeking an adjournment or extension of time in respect of a matter listed for hearing must either appear in court on the listed date or send a representative to make a proper application for relief.

1. I adopt, with respect, those observations. 

2. In Buljubasic the Finn J, agreeing with the learned presiding Judge, commented:

   I would also want to endorse strongly the comments that have been made by the presiding judge regarding the importance of adherence to the traditional practice that those who seek from the court an adjournment of their matter should appear themselves or by legal representative to seek the adjournment.  I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the court for the purpose of seeking an adjournment.

3. In my view the comments of Her Honour in relation to adjournments apply in relation to these matters.  It is usually litigants in person who write directly to the court in this manner.  In circumstances where a practitioner does so, it may be construed as being impudent.  

4. There is provision in the Family Law Rules 2004 for a response to be filed whilst not submitting it to a jurisdiction. 

5. Today, the father has advised me that he has not given all consideration which he wishes to give to the possibility of him making application as envisaged by Chapter IV of the Convention on the Civil Aspects of International Child Abduction, to which both Canada and Australia are signatories, for the enforcement of rights of access.  His submission is based on the fact that he wants what is best for his daughter and he wants to see her. 

6. I note that the father has not submitted to me that Ontario in Canada is the most appropriate jurisdiction for the proceedings to be litigated and nor has he said that it is not.  His position in this regard and what, if anything he proposes to do in the terms of the Hague Convention, are matters which should be well clarified before the adjourned date. 

7. As I have mentioned, the independent children's lawyer appears today.  The role of the independent children's lawyer is to represent the child’s interests.  As such, his role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what he believes to be the best interests of the child.[1]  He is not a legal representative retained by the child and he is not bound by any instructions from the child.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4] 

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

8. It is clear from the submissions of the independent children’s lawyer that he feels significant frustration about these proceedings in Australia.  He makes the sensible observation that the applicant father has before him a difficult task if he is to take part in proceedings in Ontario in Canada.  In Canada, he is the respondent.  Of course for as long as the proceedings in Ontario in Canada go unheard, the applicant to the proceedings has secured on an interim basis the position which she seeks be made on a final basis which is that visitation rights between the father and the child be suspended.  Not only does the applicant expect the father to participate in the Canadian proceedings, but there is every likelihood that he will have to hurry them along from Australia. 

9. As indicated, it is appropriate that the father give some consideration to exercising his rights under the Hague Convention in relation to the enforcement of his access rights.  I do not put any time limit on that.  In the context of the Hague Convention, I understand that both Australia and Canada have a liaison Judge.  The liaison Judge for Australia is the Honourable Justice Kay who is based in this Registry of the court. 

10. The matter is today listed only for mention.  The husband seeks that both his applications be adjourned to a date on which they can be heard by the court.  Given his comments it may be that he does not proceed with his application filed on 29 January.  What would then remain is an application for the mother to be dealt with for breach of the existing access orders and, I gather, the issue of whether or not she had a reasonable excuse.  I gather he is also going to consider whether it is responsible or necessary to proceed with the contravention application. 

11. The first time that the matter can be listed for a hearing of one day is 27 April 2007.  It will not be listed as a primary matter for the attention of any one particular Judge, it will be listed as a reserve matter in that week.  It will be heard by the court in the event that a Judge becomes available to hear the matter.  I hope that a Judge does become available.  The only other alternative

    
    

    I have is a special fixture before me but that would not occur until June or July and in the circumstances of this case that seems to be a very long time to wait. 

12. By April 2007 the father should have come to a decision in relation to the avenues open to him under the Hague Convention and if he proposes to continue litigation in Australia.  If he wishes to continue to litigate this matter in Australia, he will have to identify the application(s) with which he wishes to proceed and then there will need to be a hearing to determine whether Australia is clearly an inappropriate forum in which to decide any proceedings in relation to the child. 

13. In the absence of there having been established any formal line of communication between this court and the court in Canada, I will leave it to the independent children’s lawyer to have these reasons and my order transmitted to Canada in time for the next hearing. 

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  26 February 2007

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