O'Neill and Fletcher

In the Family Court of Australia at Melbourne, Justice Bennett presided over proceedings involving Mr O’Neill (the applicant father) and Ms Fletcher (the respondent mother). The dispute concerned the father's applications to enforce visitation orders for their daughter, C, and a contravention application alleging the mother's failure to comply with these orders. The father sought to have the mother dealt with for contravening orders that stipulated he spend time with their daughter, and he had also filed a further application. The core of the dispute revolved around the attempted exercise of visitation rights by the father in Australia during January and February 2007, and subsequent proceedings initiated by the mother in Canada.

The court was required to determine the status of the proceedings, particularly in light of parallel litigation commenced by the mother in the Ontario Court of Justice, which had resulted in an order suspending the father's access to the child. Key issues included whether Australia remained the appropriate forum for the proceedings, given the mother's assertion that Canadian courts had acquired jurisdiction, and the father's rights and obligations concerning the child's welfare and visitation. The court also considered the proper procedure for parties to communicate with the court and the implications of the mother's failure to notify the Australian court of the Canadian proceedings.

Justice Bennett reasoned that Australian courts had not relinquished jurisdiction over the child, despite the relocation to Canada and the existence of orders in Ontario. The judge emphasised that the Family Law Act 1975 vests jurisdiction in Australian courts, and the decision to exercise that jurisdiction is a separate matter. The court noted that it was common practice for Australian courts to require mirror orders in overseas jurisdictions not as a relinquishment of jurisdiction, but to aid enforcement and prevent re-litigation. The judge also strongly criticised the mother's conduct in failing to disclose the Canadian proceedings to the Australian court and the independent children's lawyer, and her subsequent attempts to communicate with the court via letters and faxes rather than through formal court appearances or applications. The court applied principles regarding proper communication with the court and the importance of adhering to traditional practices for seeking adjournments or relief, referencing the Full Court's decision in *Buljubasic & Buljubasic*.

The court ordered that all extant applications be adjourned to 27 April 2007 as a reserve matter. Directions were given for the parties to file and serve further applications and affidavit material by specific dates, and for a telephone mention to ascertain the matter's readiness. The court also directed that transcripts of proceedings and the reasons for judgment be prepared and provided to the parties, and that the independent children's lawyer ensure copies were sent to the office of the children's lawyer in Canada. Liberty to apply was reserved to each party.