O'Neill and Fletcher

In the Family Court of Australia at Melbourne, Mr O’Neill (the applicant father) and Ms Fletcher (the respondent mother) were involved in proceedings concerning their daughter. The matter came before Bennett J for a telephone mention, with the father appearing in person and the independent children's lawyer represented. The mother did not appear, having indicated she would not participate personally but that her lawyer would. However, attempts to contact her lawyer by telephone were unsuccessful, resulting in the mention proceeding without her participation.

The court was required to determine the circumstances surrounding the mother's non-appearance and to consider the progress of related proceedings in Canada. Specifically, the court needed to address the timing of the dispatch of its own reasons for judgment and a transcript of prior proceedings, which had been delayed and potentially sent inadequately for timely receipt in Canada. The court also had to consider the father's actions in the Canadian court, including his request for that court not to exercise jurisdiction and to allow the matter to be resolved in Australia, and the subsequent listing of the matter in Canada.

Bennett J explained that the delay in transcribing and dispatching the court's reasons for judgment from February 13, 2007, and the transcript from December 20, 2006, meant that the Canadian court likely did not have access to this material on February 27, 2007, when it heard the matter. The father had informed the court that he had requested the Canadian court not to exercise jurisdiction and to allow the matter to be resolved in Australia, and that the Canadian court had scheduled a further hearing for April 20, 2007. The judge noted the mother had not filed a Notice of Address for Service and was still considered to be representing herself. To facilitate the resolution of the matter, the judge directed that a transcript of the Federal Magistrates Court hearing before Federal Magistrate Walters in 2005 be obtained, as reasons for judgment were unlikely to be available. The judge also indicated an intention to investigate the use of communication lines for Hague Convention matters to facilitate communication in this non-Hague case, aiming to avoid a situation where neither court adjudicates the matter while the child's welfare is not addressed.

The further hearing of the matter was adjourned to April 23, 2007, for mention. The judge directed that his reasons for judgment be transcribed and placed on the Court file, with copies sent to all parties. Additionally, the judge requested the Registrar of the Federal Magistrates Court to provide a copy of any reasons for judgment from the hearing before Federal Magistrate Walters in 2005, or a transcript of that final hearing if no reasons were available.